Understanding Examination for Discovery

Examination for discovery is a critical step in the civil litigation process in Ontario. It involves the questioning of parties under oath before trial, enabling each side to understand the facts and issues in the case better. This guide provides a comprehensive overview of the process, explaining who can be examined, the purpose of discovery, how it is conducted, and key rules governing it.

What is Examination for Discovery?

Examination for discovery is a pre-trial procedure in which each party to a lawsuit has the right to question the other party (or parties) about the issues in the case. The questioning is done under oath, and the answers are recorded and transcribed by a court reporter. The main goal is to "discover" facts and evidence that will help clarify the opposing side's case, obtain admissions, and identify the strengths and weaknesses of the case before trial.

This process helps avoid surprises at trial and can often lead to settlements if the facts become clear. Discovery also narrows down the issues in dispute, making trials more efficient and focused.

Why is Discovery Important?

Examination for discovery serves two broad purposes:

1. Understanding the Other Party's Case: Discovery allows a party to gather information about the opposing party's version of events, legal arguments, and evidence. This information helps the examining party prepare their case for trial and decide on possible strategies, including settlement options.

2. Obtaining Useful Admissions: Answers given under oath during discovery can be used at trial or during motions, such as for summary judgment. These admissions can simplify the trial or even lead to a judgment without a trial if the admissions are sufficiently clear and favorable.

How is Examination for Discovery Conducted?

Examinations typically occur after pleadings (the statement of claim and defence) have been exchanged and after both parties have provided their affidavit of documents—a list of documents in their possession relevant to the lawsuit. The examination is usually conducted in person, but virtual discoveries have become more common, especially during and after the COVID-19 pandemic. The examination itself takes place in a formal setting, usually at a court reporter's office or via videoconference, without a judge present.

Key Steps in the Examination Process

1. Scheduling: Examinations for discovery occur after both sides have exchanged their affidavit of documents, ensuring that both parties have access to the evidence in the other party's possession before questioning. The parties work together to schedule a date and time for the examination.

2. Notice of Examination: The party conducting the examination serves a notice of examination, which outlines the date and location of the examination. The first party to serve this notice gets to examine the other side first.

3. Questioning: During the examination, the lawyer for one party will question the opposing party, often focusing on the facts and documents disclosed in the pleadings and the affidavit of documents. The questions may cover a broad range of topics, including:

   • The other party’s version of events.

   • Information about documents that have been disclosed.

   • Names of other individuals who may have relevant information.

   • Expert opinions and findings relevant to the case.

4. Responses: The party being examined must answer the questions to the best of their knowledge, and they may give an undertaking if they need to provide more information later. A refusal to answer may occur if a question is irrelevant, privileged, or disproportionate in terms of effort required to respond. However, refusals must be justified.

5. Transcript: Everything said during the examination is recorded and transcribed. The transcript can later be used at trial, motions, or for cross-examinations, making it an essential tool in the litigation process.

Time Limits

There are time limits on how long an examination for discovery can last. In Ontario, Rule 31.05.1 sets a seven-hour limit on oral discovery per party, though this can be extended with the consent of the parties or by court order if justified. This limit ensures that discovery is conducted efficiently without unnecessary delay.

Who May Be Examined?

Examination for discovery is not limited to just the main parties in the case. According to Rule 31.03, in addition to examining the plaintiff or defendant:

• If a corporation is involved, any officer, director, or employee of the corporation may be examined.

• In the case of a partnership or sole proprietorship, one or more partners or employees can be examined.

• A litigation guardian may be examined in place of a person under a legal disability, and in some cases, the person under disability can be examined directly.

The party conducting the examination typically selects the person they wish to examine but must follow certain rules about who is appropriate to question.

What Questions Can Be Asked?

Under Rule 31.06, any question that is relevant to the issues in the case must be answered during discovery, with some exceptions:

• Questions aimed solely at attacking a party’s credibility may be refused.

• Questions covered by solicitor-client privilege or litigation privilege are off-limits.

If a question is refused, the party must provide a reason for the refusal. The other party may challenge this refusal later in court if they believe the refusal was unjustified.

Correcting Discovery Answers

It’s not uncommon for a party to realize after the discovery that some of their answers were incorrect or incomplete. Rule 31.09 allows for the correction of answers, but both the original and corrected answers will be included in the trial record. This ensures transparency and accuracy.

Use of Discovery Transcript at Trial

The examination for discovery transcript is a powerful tool at trial. Rule 31.11 allows the transcript to be used for several purposes:

• It can be read into evidence at trial as part of the examining party’s case.

• It can be used to impeach (challenge the credibility of) a witness during cross-examination if their testimony at trial contradicts what was said during discovery.

• It can be used on motions, such as for summary judgment.

However, a party cannot use their own transcript unless under specific circumstances, such as the unavailability of a witness due to death or incapacity.

Consequences of Failing to Answer

A failure to answer a question during discovery without proper justification can have serious consequences. The court may impose costs or sanctions, or even compel the party to attend a re-examination. In some cases, failure to provide full answers may result in negative inferences or the striking of pleadings.

Conclusion

Examination for discovery is a vital step in Ontario's litigation process. It allows parties to gather important information, obtain admissions, and prepare for trial more effectively. By understanding how the process works and the rules that govern it, both parties can ensure that discovery proceeds smoothly and that they are fully prepared for trial.

If you're involved in a lawsuit and need guidance on how to prepare for an examination for discovery or how to use it to your advantage, seeking legal advice from an experienced lawyer is always recommended. This process can be complex, and having the right strategy can significantly impact the outcome of your case.