Examinations for discovery is a process by which parties can have their legal counsel ask questions of opposing parties (and perhaps non parties) under oath before an official examiner in order to obtain answers to clarify the issues in the court action and avoid surprises at trial. There is no right to a trial by ambush in Canada and so the types of questions that may be asked is fairly broad.
In 2010, the Rules of Civil Procedure which outlines a party’s right to discovery were amended. The scope of documentary and oral discovery changed. Previously, the scope of discovery was conducted based on being able to ask any questions “relating to any matter in issue” (note relating). Judges interpreted this part of the Rules as meaning being to ask questions on anything that had a “semblance of relevance”. You could drive a truck through that interpretation and almost any question could be relevant. Under the older rules, the court would allow almost any document even remotely tied to the pleadings to be produced. This encouraged hugely expensive fishing expeditions. From a plaintiff’s perspective, there was a risk that production was not sufficient and so everything was produced causing an avalanche of documentary productions. From a defendant’s perspective, insisting on every possible relevant document to be produced, meant that the process of litigation would be very expensive for plaintiffs. There was the possibility of abuse from both sides of the dispute.
Under the new Rules, the scope of discovery is now “relevant to any matter in issue” (note relevant as opposed to relating). This change was meant to cause restraint in the discovery process with regard to the cost of productions and being efficient. The amount of time allowed to examine opposing parties is now limited to 7 hours. Before, there was no time limit, strictly speaking.
Lawyers representing injured parties in Ottawa and anywhere in Ontario must now prepare for examinations with the goals of being effective and efficient given the restrictions now placed in the discovery process. Plaintiff’s lawyers should prepare discovery briefs, questions in advance, have their theory of liability and damages well prepared in advance, have their documents well prepared and organized, have reviewed opposing parties’ documents, use discovery templates as an aid to preparing questions, secure obvious admissions early on, use requests to admit prior to examinations, know their case etc…
At QTMG Ottawa personal injury lawyers, our lawyers are well versed in all areas of law that affect our clients. Our injury lawyers prepare for every step, well in advance. If you have been injured in an accident, contact us for a free consultation. We work on a no fee until you win basis and we almost always win. Call us at 613-315-4878.
QTMG Lawyers Personal Injury Lawyers representing victims in Ottawa and throughout Ontario 613-315-4878 firstname.lastname@example.org