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Civil Litigation Dicta - Simplified Procedure - Discovery. Elbassiouni v. Brenn
In Elbassiouni v. Brenn (Ont CA, 2023) the Court of Appeal considered the nature of discovery allowed under R76 simplified procedure:[11] Upon reviewing the transcripts of the examinations, the motion judge concluded that they were inadmissible under r. 76.04, which provides:No Written Discovery, Cross-Examination on an Affidavit or Examination of a Witness
76.04 (1) The following are not permitted in an action under this Rule:
1. Examination for discovery by written questions and answers under Rule 35.
2. Cross-examination of a deponent on an affidavit under rule 39.02.
3. Examination of a witness on a motion under rule 39.03.
Limitation on Oral Discovery
(2) Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examination, regardless of the number of parties or other persons to be examined. [Emphasis added.] [12] The motion judge was aware that, by implication, r. 76.04(2), permits oral examinations for discovery. However, he rejected the characterization of the examinations in this case as examinations for discovery. He found that they were cross-examinations of deponents on their affidavits under r. 39.02, and said at para. 7: “The parties’ attempt to have the transcripts found to be admissible by characterizing these examinations as ‘discovery’ is nothing more than a thinly veiled attempt to circumvent the Rules of Civil Procedure.”
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