Examination for Discovery in Ontario: What to Expect

What is an examination for discovery, and what to expect in Ontario?

An examination for discovery (often just "discovery") is a stage of an Ontario civil lawsuit that usually happens after the written claim and defence are exchanged and before any trial. Its purpose is to let one side obtain information from another party under oath. Rule 31 of the Rules of Civil Procedure sets out how it works, and Rule 34 covers the procedure for oral examinations.

It is not a trial. The examination is normally recorded in full, and a party can request a typed transcript (rules 34.16 and 34.17).

Who can be questioned at discovery?

A party can examine an opposing party once, and again only with the court's permission (rule 31.03(1)). Details depend on who is examined:

• A person. The party themself is examined.
• A corporation. The examining party can choose an officer, director or employee to speak for the company, subject to the corporation asking the court beforehand for a different one. Examining more than one needs consent or the court's leave (rule 31.03(2)).
• A partnership or sole proprietorship sued under a firm name. Each person who is, or is said to have been, a partner or the proprietor at the relevant time can be examined (rule 31.03(3)).
• A person under a legal disability. The litigation guardian can be examined in the person's place or, at the examining party's option, the person can be examined if competent to give evidence (rule 31.03(5)). The court's leave is required where the guardian is a public official, namely the Children's Lawyer or the Public Guardian and Trustee.
• Someone who is not a party. Apart from a few linked persons (an assignor, a bankrupt, or someone who stands behind the real party in the case: rule 31.03(6) to (8)), this needs the court's leave (rule 31.10(1)). The court must be satisfied, among other things, that the information could not be obtained from the persons who can be examined as of right, that it would be unfair to go to trial without the examination, and that the examination will not unduly delay the trial, entail unreasonable expense for other parties or be unfair to the person (rule 31.10(2)).

What has to happen before discovery?

Timing is set by rule 31.04. A party who wants to examine a plaintiff can serve the notice only after filing its own defence and, unless the parties have agreed to skip it, giving the other side an affidavit of documents. For a defendant, there are two routes: the defendant has filed a defence and the examining side has handed over its own affidavit of documents (unless the parties agree otherwise), or the other side has had the defendant noted in default.

The affidavit of documents comes from Rule 30. Each party lists, in separate schedules, relevant documents it will produce, those it claims privilege over (with grounds), and those it no longer has (rule 30.03(2)). A party's lawyer certifies having explained the need for full disclosure (rule 30.03(4)). Unless the parties agree otherwise, the non-privileged documents listed are brought to the examination (rule 30.04(4)).

A notice of examination for a party goes to the party's lawyer of record, or to the party directly if the party has no lawyer (rule 34.04(1)). A person living in Ontario gets at least two days' notice of the time and place, unless the court orders otherwise; the person and all parties can also agree to a shorter notice or to none (rules 34.05 and 34.06).

How long can it last, and what form does it take?

If more than one party can examine the same person without leave, the default is one oral examination, subject to a court order or agreement (rule 31.05). On a request for more than seven hours, the court considers factors such as the conduct of parties in earlier examinations (rule 31.05.1(2)).

What questions must be answered at discovery?

Any proper question tied to an issue in the lawsuit must be answered as far as the person knows or believes (rule 31.06(1)). Two points stand out:

• A question cannot be refused just because it asks for "evidence". The Rules say that objection is not available (rule 31.06(1)(a)).
• Questions can go beyond the person's own recollection. Unless the court orders otherwise, a party can ask for the names and addresses of people who might reasonably be expected to know about the events (rule 31.06(2)), and for details of an insurance policy that may respond to a judgment (rule 31.06(4)).

If a question is objected to, the objector states a short reason, which is recorded (rule 34.12(1)). Privilege is one ground on which refusals are made (rule 31.07(1)(a)), and a lawyer can advise on what it covers.

What are undertakings and refusals?

An undertaking is a promise during the examination to find out and provide an answer later. A refusal is a question the person declines to answer. A question taken under advisement is one the person says will be considered.

Rule 31.07(1) treats a question as unanswered when the party refuses it, or promises to answer or consider it and then supplies nothing within 60 days. When that happens, the party generally cannot use that missing information at trial unless the trial judge allows it (rule 31.07(2)). The Rules also say an undertaking must still be honoured (rule 31.07(4)).

A ruling on whether a refused question was proper can be sought from the court by motion (rule 34.12(3)). Where the court holds that an objection was improper, it may order or permit the person to attend again, at their own expense, and answer (rule 34.15(1)(a)).

What is the lawyer's role during discovery?

The Rules give lawyers specific roles:

1. A lawyer may answer a question if no one objects, and the answer counts as the client's unless the client repudiates, contradicts or qualifies it before the examination ends (rule 31.08).
2. The examined person's own lawyer may re-examine straight afterwards, but not in the form of a cross-examination (rule 34.11(1) and (3)).
3. The examination can be adjourned to seek the court's directions in situations such as bad-faith questioning or many evasive answers (rule 34.14(1)).

What happens after the examination?

Two obligations continue afterwards:

• Corrections. If a party later learns an answer was wrong or incomplete, or is no longer correct, the Rules require them to provide the corrected information in writing to every other party promptly (rule 31.09(1)). If the party does not do so and the new information is favourable to its case, the party cannot introduce it at trial without the trial judge's leave (rule 31.09(3)).
• Confidentiality of what was learned. Under the deemed undertaking in rule 30.1.01(3), the parties and their lawyers are deemed to promise not to use evidence from discovery for anything other than the same lawsuit. Exceptions include a use the disclosing person consents to (rule 30.1.01(4)) and evidence filed with the court or referred to at a hearing (rule 30.1.01(5)).

Can discovery evidence be used at trial?

In the ways the Rules allow, yes. At trial, a party can read into evidence, as part of its own case, parts of the discovery evidence of the adverse party, if it is otherwise admissible (rule 31.11(1)). The evidence can also be used to challenge a witness in the same way as an earlier inconsistent statement (rule 31.11(2)). If only part is read in, the judge can direct that other parts that qualify or explain it also be read (rule 31.11(3)).

A party who reads in an opponent's discovery evidence may still rebut it with other admissible evidence (rule 31.11(4)).

When it is worth talking to a lawyer

People in this position typically speak to a lawyer when:

• a notice of examination or summons has been received and a date is fixed;
• an affidavit of documents is required and it is unclear what counts as "relevant" or "privileged";
• questions have been refused, or undertakings are outstanding and the 60-day period under rule 31.07 is running;
• the amount in dispute is significant, or an insurer is involved;
• the other side seeks to examine more than once, for longer than seven hours, or to examine a non-party;
• an interpreter is needed, or the person to be examined is under a disability.

Dates and deadlines depend on the facts of each case and should be confirmed with a lawyer immediately.

What to gather

A lawyer would typically ask for:

• the statement of claim and statement of defence;
• any notice of examination, summons or correspondence setting the date;
• the affidavit of documents (yours and the other side's), with copies of the listed documents;
• relevant emails, messages, photographs, invoices and records, including electronic ones, and any insurance policy or insurer letters;
• a written timeline of events.

Related guides

Earlier steps: being served with a statement of claim and default judgment. Later steps: mandatory mediation and pre-trial conferences.