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Time Limit for Simplified Procedure Discoveries

In Simplified Procedure actions, a party is limited to conducting three hours of oral examinations, regardless of the number of parties or other persons to be examined.

The case of Leask v. Homewood Health Centre Inc., 2021 ONSC 6287, involves a Simplified Procedure action. The defendants permitted the plaintiff’s lawyer to extend the three hour time limit. The plaintiff’s lawyer examined the defendants for over five hours.

However, when the defendants examined the plaintiff, the plaintiff’s lawyer ended the discovery just shy of three hours on the basis that time had expired. No advance warning was given of this. Associate Justice Jolley said that “[c]onducting litigation in this way seems sharp, to say the least”. She noted the following:

The plaintiff did not take this position at any time before February 5 or even at the commencement of the discovery that morning so that counsel could plan their questioning accordingly.  Nor did he take into account that defendants’ counsel extended him the courtesy of well exceeding his time for the examination of the defendants.  While he noted at the conclusion of his client’s examination that the defendants had been “very very nice” in allowing him to examine their clients beyond what was strictly allowed, he was not prepared to extend the same courtesy. 

Nevertheless, Associate Justice Jolley stated that she did not have discretion to extend the time limit. She indicated:

Unfortunately, I find that the court does not have the discretion to extend the simplified procedure time limits even when counsel have behaved in [t]his manner.  While the rules are to be construed to secure the just determination of the matters in dispute and compliance may be waived in the interest of justice, rule 76.04(2) does not provide the court with leave to extend the time limits, in direct contrast with rule 31.05.1. 

Therefore, based on this decision, it appears that the time limit for oral examinations in Simplified Procedure actions can only be extended if the parties do not enforce the time limit.

Note: a subsequent decision indicates that the court can extend the time limit. See this blog post for details.