1. Get Assistance for an Examination for Discovery in Ontario
An examination for discovery is an important part of the personal injury claim process and a critical step in litigation.
This is done so that both sides can properly, and fairly, prepare to defend their claims in a court (if necessary). During this mandatory legal proceeding, a lawyer from the opposing side will ask questions pertaining to your case. This is done to test your claims for any weaknesses or inconsistencies.
This can cause understandable angst and stress for those not used to the process or questioning. Understanding what to expect can help reduce anxiety and ensure you’re properly prepared for this essential phase of your claim.
That is why employing the help of a qualified, licensed, and knowledgeable personal injury lawyer is of vital importance. Weaknesses and inconsistencies can potentially reduce the compensation and damages you may require and are potentially entitled to. Your skilled personal injury lawyer will do what they can to ensure that this does not happen. Our reputable firm represents injured claimants throughout Ontario, providing thorough preparation and strategic legal advice to protect your rights during discovery.
2. Provide All Relevant Information to Your Lawyer
The examination for discovery process is limited to 7 hours unless there has been an agreed-upon change to that amount of time by the parties. This time-limited proceeding is typically scheduled well in advance to allow both parties adequate preparation time.
Additionally, this amount of time is given to each party within the action. Therefore, if there is one plaintiff, and two defendants, then the plaintiff may be subject to being examined for up to 14-hours (7-hours, potentially, for each defendant)! This amount of time, usually, is not the case, but it is important to keep in mind. Understanding the timeline and duration helps you prepare mentally and physically for this demanding process.
The examination for discovery process is usually conducted once during the trial process. Your testimony will be recorded by a court reporter and transcribed, creating a legally binding record that can be used at trial.
It is important, then, that you provide your personal injury lawyer with all the relevant information regarding your matter. This includes medical records, accident reports, police reports, wage loss documentation, and any other evidence supporting your claim. This is necessary so that your competent and detail-oriented personal injury lawyer can properly prepare you to defend and clarify your claims during the examination process. Complete and accurate disclosure to your lawyer ensures they can develop a comprehensive strategy and anticipate potential questions from opposing counsel.
3. Determine Who Should Attend an Examination for Discovery
The parties who may attend an examination for discovery, without qualification, are, of course, the parties, to the action and their counsel. Included in this are any people who have been summoned as witnesses, as well as “agents” of corporations. The claimant, respondent, and their legal representatives have an automatic right to attend this mandatory proceeding.
Less certain, is when it comes to people who are not parties to the action. In this case, admitting them will have to be agreed upon by both sides, or with leave of the court as was stated in Yu v. Linnell (2020 ONSC 522). This ensures the confidential nature of the discovery process is maintained while allowing necessary participants to be present.
In addition, expert witnesses may be admitted into the examination for discovery if they are there to, essentially, advise and assist the lawyer in carrying out a satisfactory examination. However, there is a caveat, and that is that following an appearance at an examination for discovery, an expert witness cannot be used as a witness at trial. This important rule prevents experts from gaining unfair advantage by observing the discovery testimony before providing their own trial evidence.
4. Only Provide Relevant Documents
A notice of examination for discovery in Ontario will be sent to you or your lawyer, in the form of a “Form 34A”. This official court-approved document will be served on you within the timeline specified by the Rules of Civil Procedure.
This notice will request from you, or your lawyer, to produce documents relevant to your case. Generally, no documents that your personal injury lawyer has “privileged” will need to be produced. Privileged communications between you and your lawyer remain confidential and protected from disclosure to the insurance company or opposing parties.
Overall, this is done so that opposing counsel may have time to review the materials and write down questions or ask for clarification during your examination. The document exchange process ensures both sides have access to discoverable evidence, promoting fairness and transparency in the litigation process.
It is important to contact a professional and trustworthy personal injury lawyer so that you do not, by accident, disclose something that could be detrimental to your case. Experienced and specialized Personal injury lawyers are trained to spot documents that should be privileged; or those that do not need to be disclosed; as well as having the experience of navigating a seemingly confusing court system. Our dedicated legal team will carefully review all documentation to determine what must be produced and what can be withheld on grounds of privilege or irrelevance.
5. Make Sure You Attend an Examination for Discovery
Failure to attend an examination for discovery in Ontario is a bad idea. Non-attendance can result in serious legal consequences, including dismissal of your claim or adverse cost orders.
In general, a party can be compelled to submit to an examination, unless there is a valid reason that satisfies the court. The court may issue a subpoena or other compulsory order to ensure your attendance at this essential proceeding.
The courts have been particularly unforgiving in this regard. Judges consistently enforce attendance requirements to maintain the integrity and efficiency of the discovery process.
In Latner v. Latner-Assaraf 2010 ONSC 3141, the Master confirmed that there would be, and have been, very few instances where a party would be exempt from providing evidence. Only exceptional circumstances, such as severe medical conditions documented by physicians, may justify postponing or modifying the examination.
Additionally, the Master hinted that where a party was unable to provide oral evidence; the courts would allow for written questions to be administered. This alternative procedure, known as written interrogatories, may be permitted in rare cases where testifying in person is genuinely impossible.
6. Discuss the Examination for Discovery With Your Lawyer
After an examination for discovery, it would be a good idea to go over any questions or concerns that you may have with your responsive and available personal injury lawyer. It would be wise for this discussion to assess the strengths, weaknesses, and the next steps in your case, considering, what was revealed in the discovery. This debriefing session allows your lawyer to evaluate the credibility of testimony, identify any inconsistencies that need clarification, and assess the defendant’s defense strategy.
A potential settlement could be reached after the examination process; however, it is more likely that your claim will proceed to a mediation. Many cases settle following discovery once both parties have a clearer understanding of the evidence and the strength of each side’s position. Your lawyer will negotiate on your behalf to secure maximum compensation while advising you on reasonable settlement offers versus proceeding to trial.
7. Interpret the Provisions in the Rules of Civil Procedure
The rules governing an examination for discovery are found in the Rules of Civil Procedure. Rule 31 discusses everything that is required, allowed, or not allowed, during the examination for discovery process. These detailed legal provisions establish the framework for conducting discoveries, including time limits, document production requirements, and permissible questioning. It is advised that you allow your thorough and strategic personal injury lawyer to interpret these provisions. Understanding your rights and responsibilities under Rule 31 is essential to protecting your interests during this critical phase of litigation.
By using the help of an experienced personal injury lawyer with your claim they will not only guide you through the examination of discovery but lead you to an outcome that best fits your needs. Our established firm has a proven track record of successfully representing clients through the discovery process and securing favorable settlements and trial verdicts. If you would like to learn more about how a client-focused and results-driven personal injury lawyer can help you contact us. We can give you the advice you need to take the first step confidently. Our compassionate legal team offers free consultations with no upfront costs, operating on a contingency fee basis so you only pay if we win your case.
Statutes and Regulations:
Courts of Justice Act, R.S.O. 1990, c. C.43.
R.R.O. 1990, Reg. 194: Rules of Civil Procedure.
Cases:
Latner v. Latner-Assaraf 2010 ONSC 3141.
Poulton v. A & P Properties Ltd., [2005] O.J. No. 649.
Yu v. Linnell, 2020 ONSC 522.
