EDWARDS v. MCCARTHY CV-07-341402 2012 ONSC 6833

Counsel: Michael Katzman for the plaintiff Leslie Wright for the defendant John J. McCarthy

ENDORSEMENT (MOTION HEARD NOVEMBER 30, 2012)

Master R.A. Muir -

1. The plaintiff brings this motion for leave pursuant to Rule 31.05.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff seeks leave of the court to continue his examination of the defendant John R. McCarthy (“Mr. McCarthy”) for an additional three to five hours. According to the plaintiff, Mr. McCarthy has already been examined for approximately 8.25 hours. Mr. McCarthy argues that the length of his examination to date has been closer to 10 hours.

2. Regrettably, Mr. McCarthy’s examination took place over the course of three separate days in 2009, 2011 and 2012. I am sure Mr. McCarthy does not look forward to being examined on a fourth day regardless of the length of any further examination.

3. This is a negligence action brought by the plaintiff against Mr. McCarthy, the plaintiff’s former lawyer. Mr. McCarthy handled the plaintiff’s accident benefits claim arising from a motor vehicle accident. The accident benefits claim was settled in 2005. The plaintiff alleges that the settlement was improvident and that Mr. McCarthy was negligent in counselling the plaintiff to accept the settlement offer. Mr. McCarthy denies the plaintiff’s allegations.

4. Rule 31.05.1(1) limits the length of oral examinations to seven hours. The court has the power under Rule 31.05.1(2) to lengthen that time period based on certain factors, as set out in that Rule. The important factors for this motion are: the amount in issue; the complexity of the issues; the amount of time that ought reasonably to be required; and the financial position of each party. In addition, the court can consider any other reason that should be taken into account, in the interest of justice. Having considered those factors within the context of this action, I have concluded that a further brief examination is in the interest of justice.

5. For the purposes of this motion, the parties value the plaintiff’s claim, if successful on the issue of liability, as being somewhere between $240,000.00 and $400,000.00. This is not a large claim relative to many other Superior Court actions, but it is, for example, a claim for an amount well above the threshold for simplified procedure (by a factor of least 2.5). In my view, this is a significant amount of money, especially to an individual plaintiff such as Mr. Edwards, as opposed to a similar claim by a corporate or institutional plaintiff. I am also of the view that this action is somewhat more complex than the average Superior Court action. The issues of fact and law that must be determined cover both the underlying accident benefits action and the negligence claim against Mr. McCarthy. Both liability and damages are in issue. There are voluminous productions from both sides, including many pages of medical records. The action is further complicated by the fact of a pre-existing condition from which the plaintiff was suffering at the time of the motor vehicle accident. In my view, all of these factors lead to the conclusion that this is an appropriate case for additional oral discovery.

6. Furthermore, there is no evidence that would suggest that a further oral discovery would cause any financial hardship to Mr. McCarthy or his insurer.

7. Mr. McCarthy’s counsel argued that many of the areas the plaintiff still wishes to examine upon were covered to some degree over the course of the examination that has been conducted to date. This appears to be the case, at least based on my review of the pages of the transcript referenced by counsel. However, I am also satisfied that the plaintiff’s examination with respect to those areas of concern was not fully completed. It is true that the examination of Mr. McCarthy probably could have been conducted more efficiently but counsel should not be held to a standard of perfection when conducting a discovery. There is certainly no evidence of improper questioning on the part of counsel for the plaintiff that led to any significant wasted time.

8. I am also of the view that the plaintiff should have been allowed to continue his examination of Mr. McCarthy for two additional hours on May 8, 2012. The examination was halted by Mr. McCarthy’s lawyer at 3:00 p.m. on that day. Mr. McCarthy’s lawyer took the position that the plaintiff had exceeded the allotted time and no further examination of Mr. McCarthy would be permitted without a court order (as he had previously advised the plaintiff’s lawyer he would do). The transcript makes it clear that the plaintiff’s lawyer was prepared to continue that day for any reasonable length of time but that Mr. McCarthy’s lawyer was not prepared to continue any further. In my view, it would have been reasonable to continue the examination for the balance of the working day in those circumstances. The plaintiff’s lawyer may have very well been able to complete the examination. The parties and their counsel were already prepared and present. Continuing the examination until the end of the business day would have resulted in very little inconvenience and certainly would have been far preferable to this motion.

9. Finally, the objective of achieving the just, expeditious and least expensive determination of the issues in this action would be furthered by allowing the additional discovery. A complete discovery of Mr. McCarthy will lead to economies at trial, a more meaningful mediation session and quite possibly promote an early resolution of this dispute.

10. For these reasons, I am prepared to grant leave to the plaintiff to continue his examination of Mr. McCarthy for a period of 2.5 additional hours. This will allow the plaintiff a total of nearly 11 hours of discovery or one and a half times the time ordinarily permitted under the Rules. In my view, this period of time for oral discovery is consistent with the complexity of this action and the factors set out in Rule 31.05.1(2) and is the amount of time that ought reasonably to be required for the conduct of the defendant’s examination.

11. Mr McCarthy shall attend for a continued examination for a period not to exceed 2.5 hours on a date to be arranged by counsel.

12. The following timetable shall apply to this action:

(a) Mr. McCarthy’s continued examination shall be completed by no later than March 15, 2013;

(b) Discovery motions shall be heard by no later than April 30, 2013;

(c) Mediation shall take place on March 28, 2013;

(d) This action shall be set down for trial by no later than July 12, 2013, failing which it shall be dismissed by the registrar without further notice.

13. In my view, the plaintiff is entitled to a portion of his costs of this motion. He has been successful on this motion, although only partially so. As well, Mr. Wilson did not make a firm commitment to finish his discovery by the end of the business day on May 8, 2012, just that the examination should keep going. In view of these factors, and having considered the factors and principles set out in Rule 57.01(1), it is my view that it is fair and reasonable that the defendant John R McCarthy pay the plaintiff’s costs of this motion on a partial indemnity basis, fixed in the amount of $3,000.00, inclusive of HST and disbursements, payable within 30 days.

November 30, 2012

Master R. A. Muir