The Applicant proposed to have in-Court cross-examinations on the Affidavits of four Parties that had made Applications for Summary Judgment. The Applicant claimed that, due to the complexity of the litigation and a multitude of problems arising from Discovery, this step was necessary to resolve the claim in a timely and cost effective way. Counsel for each of the Respondents argued that Rule 6.11(1)(g) gives the Court considerable discretion, but since there is no case law on the new Rule, the limiting principles under former Rule 276(1) should apply, and that oral examination at Application hearings should only be allowed in “exceptional” or “extraordinary” circumstances.

The Court agreed with the submissions put forward by the Respondents, stating:

I have contemplated the options including the normal approach (Rule 5.25) and the exceptional approach under Rule 6.11(1)(g). I have thought through the time demanded of the proposed judicial role, which would mean I supervise examination and objections, giving rulings “on the spot”. While … there would be some efficiency to having any objections ruled on simultaneously, that would also be an unpredictable and very time consuming process. In the result, the proposed use of Rule 6.11(1)(g) risks significantly extending the discovery process. I do not consider that appropriate.

The Court concluded by dismissing the Rule 6.11 Application:

For the reasons above, the application to invoke Rule 6.11(1)(g) is dismissed. The new Rule, while written somewhat differently than previous Rule 267, is still a discrete option that should be used only if other methods of resolving objections or questioning difficulties have failed. Judicial resources are indeed scarce.