What Is an Examination for Discovery in Ontario, and What Should You Expect?

Examinations for Discovery are a phase in the litigation process whereby each party’s lawyer can question and examine the opposing party under oath or affirmation.

Examinations for Discovery are sometimes referred to as dispositions, questioning, exams, or discoveries. Apart from going to Trial, the Examination for Discovery is the litigation event wherein litigants must directly participate in the litigation process.

Examinations for Discovery are the most important part of the litigation process because it is the opportunity for each party to give viva voce (verbal) evidence about the material facts of the case.

Everything that is said during the discovery is recorded. These recordings are later transcribed, and the transcripts can be used at Trial to read in or buttress or impeach the evidence of a witness.

The purpose of the Examinations for Discovery is to ensure that each party understands and appreciates the evidence that will be adduced at Trial: In Ontario, the Courts abhor “trials by ambush” and judges work to ensure that surprises at Trial are limited, and that parties are aware of the facts of each case beforehand.

By recording and transcribing the evidence given at Examination for Discovery, a written and sworn record of each party’s evidence is created, which can then be used and referred to at Trial.

Examinations for Discovery also have the unofficial purpose of permitting each party’s lawyer to view and assess the presentation and credibility of the opposing party.

If a witness/deponent presents his or her evidence credibly and articulately at discovery, it may lead the opposing lawyer to conclude that the witness/deponent may be believed at Trial. Conversely, if a witness/deponent presents his or her evidence at discovery in a rude, aggressive, or unbelievable manner, the opposing lawyer may recommend proceeding with litigation on the basis that the judge and/or jury will be skeptical of the opposing party’s evidence.

The Ontario justice system strongly encourages parties to make efforts to resolve and settle their claims prior to Trial. As such, the impression that a witness makes at his or her Examination for Discovery can have a significant impact on the parties’ settlement positions.

How Does an Examination Work?

In Ontario, the Examination for Discovery process is governed by the Rules of Civil Procedure. Specifically, Rules 29.1.01 through 33.08 of the Rules of Civil Procedure govern the process by which parties can examine and be examined. 

Prior to the Discoveries, the parties’ lawyers will agree to a discovery plan and provide all other parties with the relevant documentation needed to conduct the examination.

In a personal injury action, such as one arising from a motor vehicle accident or trip and fall accident, the parties typically exchange investigative records, police files, medical records, employment files, income documents, insurance documentation, expense receipts and invoices, photographs, and all other relevant documentation, prior to examination.

During the Examination itself, if further documentation is required, the parties will often give an undertaking to provide further, relevant documentation as requested. Parties may also refuse to provide certain documentation if he or she believes it is not relevant to the issues in dispute.

While the requirement to disclose much personal information can sometimes be frustrating, the opposing parties are entitled to review all relevant documentation before the examination is conducted.

Given the significant impact that an injury can have on one’s life, defence lawyers have a wide berth to review a wide variety of documentation and to ask questions relevant to the issues in dispute.

While the standard of relevance is paramount, discoveries in personal injury actions typically involve relevant questions regarding the period of 2-5 years prior to the date of the accident up to the date of the examination and Trial.

The examination itself is limited to 7 hours per party in claims commenced under the ordinary procedure, and 3 hours per party in claims commenced under the simplified procedure.

Witnesses can take breaks as needed; however, any breaks do not come out of the total time a party is entitled to be examined. If the examination is not completed on the date scheduled, a continuation of the examination can be scheduled for another date. 

In a personal injury action, the Defendant’s discovery typically takes place first, starting at 10:00 a.m., and may conclude after 1 to 3 hours, followed by a short recess and then the Plaintiff’s discovery. In a personal injury action, the Plaintiff’s discovery generally takes longer to complete than the Defendant’s discovery because counsel must canvass the issues of damages, injuries, medical treatment, income losses, expenses, etc. 

While the Examinations for Discovery traditionally take place at a Court Reporter’s office, there has been a significant increase in the use of videoconferencing for discoveries since the COVID-19 pandemic.

Today, most discoveries take place through videoconference, which is still hosted by the court reporter, who transcribes all questions and answers in real-time. The videoconference itself is often recorded, but it remains to be seen if the video footage of the discovery would be admissible at Trial in each instance.

There are both benefits and disadvantages to conducting examinations by videoconference as opposed to in person, but it appears that as technology evolves, the movement towards videoconferencing will continue to increase.

What to Expect at an Examination for Discovery?

The discovery process itself involves the opposing lawyer asking the witness questions, one at a time, until he or she is satisfied that no further questions are required.

If there are multiple parties involved in a claim, each party’s lawyer typically waits for his or her turn to ask questions. Witnesses are examined by each lawyer in turn, not as if he or she is facing a panel of lawyers.

The witness’ lawyer should refrain from interjecting unnecessarily but should also ensure that the questioning is done in a fair and orderly manner. 

Parties are required to act civilly together during the discovery process, but the emotional investment of the people involved will occasionally lead to outbursts and frustrations being expressed.

If this happens, the parties should take a break to collect themselves and restore civility. While discoveries do not take place in a courtroom or in the presence of a judge, these proceedings are extensions of the justice system and courtroom decorum should be observed.

Given the tensions that often accompany litigation, it is critical that parties do their best to always remain polite and civil to one another.

Examinations for Discovery can often feel monotonous. This is the opposing party’s sole opportunity to put questions directly to the witness before a Trial. As such, lawyers can sometimes be extraordinarily thorough and detailed in their questioning, even if the most effective lawyers are efficient and to the point in their cross-examination of a witness.

For this reason, it is critical for witnesses to stay alert and pay attention to each question as it is being asked, and to give answers in a direct and honest manner. For litigants, the Examination for Discovery is the day when they will be most directly involved in their litigation. It is critical that participants take the process seriously and prepare accordingly.

There is no single formula for asking questions, which the opposing lawyer must follow. While it helps to have the questions asked in an organized and straightforward manner, sometimes an answer will prompt the lawyer to circle back to a previous topic or jump ahead to one not yet explored. In general, the Examination for Discovery of a Plaintiff in a personal injury examination will canvass the following topics: 

1. Personal background information; 
2. Pre-existing medical conditions and mitigating factors; 
3. The accident and how it occurred;
4. The injuries sustained in the accident and the ensuing limitations; 
5. The medical treatment history of the injuries and prognosis for recovery; 
6. The accident’s impact on employment, income and earning capacity;  
7. The accident’s impact on household and recreational activities; and,
8. The accident’s impact on any other aspects of the victim’s life.

The contested issues in each claim are different: In some claims, the liability for the accident is most contested. In others, income loss is an issue.

Whatever the challenges may be in your case, Preszler Injury Lawyers can help you prepare to give evidence at your Examination for Discovery in a manner that is tailored to you. 

Immediately following the discovery, the lawyers may take a few minutes together to discuss the claim and plan the next stages of your litigation before he or she debriefs you.

As discoveries can be long and exhausting, it is a good idea to plan to take some time for a comforting meal or hot bath afterward to help relax and to remind yourself that Examinations for Discovery can be the most challenging step in the litigation process, which you have now completed.

While participation in Examinations for Discovery can often feel overwhelming and very stressful, preparing properly with your lawyer can go a long way to minimize stressful feelings while maximizing your case’s chances for an optimal outcome.

When it is time for your Examinations for Discovery, Preszler Injury Lawyers can help you ensure that you are prepared, confident and ready to give strong evidence that will support your case.