7 Important Factors for an Optimal Examination for Discovery

1. Get Assistance for an Examination for Discovery in Ontario

An examination for discovery is an important part of the personal injury claim process.

This is done so that both sides can properly, and fairly, prepare to defend their claims in a court (if necessary). 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 for those not used to the process or questioning.

That is why employing the help of a personal injury lawyer is of vital importance. Weaknesses and inconsistencies can potentially reduce the compensation you may require and are potentially entitled to. Your personal injury lawyer will do what they can to ensure that this does not happen.

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.

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.

The examination for discovery process is usually conducted once during the trial process.

It is important, then, that you provide your personal injury lawyer with all the relevant information regarding your matter. This is necessary so that your personal injury lawyer can properly prepare you to defend and clarify your claims during the examination process.

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.

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).

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.

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 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.

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.

It is important to contact a personal injury lawyer so that you do not, by accident, disclose something that could be detrimental to your case. 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.

5. Make Sure You Attend an Examination for Discovery

Failure to attend an examination for discovery in Ontario is a bad idea.

In general, a party can be compelled to submit to an examination, unless there is a valid reason that satisfies the court.

The courts have been particularly unforgiving in this regard.

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.

Additionally, the Master hinted that where a party was unable to provide oral evidence; the courts would allow for written questions to be administered.

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 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.

A potential settlement could be reached after the examination process; however, it is more likely that your claim will proceed to a mediation.

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. It is advised that you allow your personal injury lawyer to interpret these provisions.

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. If you would like to learn more about how a personal injury lawyer can help you contact us. We can give you the advice you need to take the first step confidently.

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.