Answers before trial: Examinations for discovery in Canada

Examinations for discovery allow parties to present facts before a case goes to trial. This step gives each side a chance to ask questions and get answers before the big day in court.

In this article, we will discuss what an examination for discovery is, how it works, and what factors parties should consider. For any topics not covered here, you can always consult a Lexpert-ranked litigation lawyer.

What are examinations for discovery?

In a civil case, an examination for discovery is part of the pre-trial process under the rules of court by the different provinces and territories. This question-and-answer process is done orally and under oath at a specified meeting, where one party asks the other questions about the issues in the case. Unless a question is objectionable, the other party is required to answer.

An examination typically takes place outside the courtroom, such as an examiner's office or virtually. Although still subject to court supervision, the proceedings are recorded by a court reporter.

Examinations for discovery may be called by different names depending on the jurisdiction. In Alberta, the process is called questioning for discovery. In other countries, it is referred to as a deposition.

Examinations usually follow document discovery, after receiving documents from the other party. After reviewing the documents, a party can use examinations for discovery to:

• clarify information in the document
• determine what questions to ask during the examination

Here's some discussion on prepping:

Example of an examination for discovery

Let's say a personal injury case was filed in Ontario. Sarah is suing Tom because she claims that it was Tom's car that hit hers at an intersection. Both sides want to know what really happened before the trial.

Sarah's lawyer arranges an examination for discovery. Tom comes to a specified boardroom, along with his lawyer. A court reporter is also there to record everything.

After the introduction, Sarah's lawyer asks Tom questions, such as where he was going that day and what he saw at the intersection. Under oath, Tom answers each question. However, if he does not know the answer, he can say so or promise to find out and provide the answer later. This is called an undertaking, which Tom's lawyer notes.

Sarah's lawyer also asks Tom if anyone else saw the crash. Tom gives the names of two people who were in his car. The lawyer also asks Tom if he has any documents or photos of the accident. Tom says he has some pictures on his phone and agrees to share them.

Throughout this process, Tom's lawyer can object if a question is improper, such as one about private conversations with his lawyer. The court reporter notes any objections and undertakings in the transcript. If Tom refuses to answer a proper question, Sarah's lawyer can ask the court to compel Tom to answer.

After the examination, Tom's lawyer reviews the transcript. If Tom promised to provide more information, he must send it within the specified period.

Everything Tom says can be used in court, so it is important that he answers carefully and honestly. This process helps both sides know what to expect at trial and can sometimes lead to a settlement before the case proceeds to court.

Here's a video showing what happens in an examination for discovery:

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Conditions before an examination

Examinations for discovery are part of the pre-trial process; they are scheduled before the actual trial and after a leave of court is granted. It is also done after all pleadings are submitted to the court and served to the other party, such as the statement of claims or defence. This ensures all parties know what the case is about and what evidence exists, which helps in conducting the examination.

Submission of undertakings

During an examination, the examining party can ask the other party to produce a document or supply some missing information through an undertaking. If it is proper, the opposing lawyer will then promise to comply at a later date. The time allowed to comply with the undertaking depends on the rules of each province or territory.

Settlement after the examination

Even though the trial can proceed after the examination, parties may still settle their dispute out of court. Lawyers from both parties will evaluate on their own if a settlement is still possible and check with their clients if they would want to continue the settlement negotiations before trial.

What are the purposes of examinations for discovery?

While it may seem another process that can delay and add costs to the trial, examinations for discovery actually serve several important purposes, such as:

• learning more about the facts
• finding out what the other party knows
• seeing what evidence might come up at trial

All these can help build the case and prepare the parties for trial.

What questions can be asked in an examination for discovery?

The rules of court of each province and territory govern what questions can be asked in examinations for discovery. For instance, Alberta's rules of court limit the scope of questions that can be propounded in an examination for discovery. Its rules say that parties can only ask questions that will either:

• determine one or more issues that were raised in the pleadings
• ascertain the evidence, which will determine an issue/s raised in the pleadings

These requirements are similar in other provinces. Generally, questions must either be:

• related to the issue in the case
• relevant to an allegation in the pleading filed by the other party

However, if the question is objectionable, the lawyer of the person being examined can object, allowing the person to not answer.

Here's another video that explains examinations for discovery and how they work according to Ontario's rules:

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How long does an examination for discovery take?

The minimum or maximum duration that examinations for discovery can take place depends on provincial or territorial rules.

For example, British Columbia's Supreme Court Civil Rules provide that examinations for discovery are limited to only seven hours per party doing the examination. The exception is when a different rule is either:

• ordered by the court
• agreed by the parties

The same rules have a different timeframe for fast-track litigations. Here, the examinations are limited to a total of two hours for all parties conducting the examination, regardless of the number of parties on one side.

What are the roles of a lawyer in an examination for discovery?

When you file a case or if a case is filed against you, your lawyer will assist you in all the court processes, including the examination for discovery. Here are the things that you can expect your lawyer to help you with before and during an examination:

• know the rules of court: litigation lawyers know the rules of court applicable to your case, since every province and territory has their own rules, including the rules for an examination for discovery
• prepare clients for examination: before the meeting, your litigation lawyer helps you prepare by reviewing the facts, documents, and questions, so that you know what to expect
• object during the examination: if you're being questioned, your lawyer listens closely and objects if a question is improper (e.g., irrelevant, privileged, or outside the rules)
• assist clients after the examination: your lawyer reviews the transcript and checks that all undertakings and refusals are properly noted by the court reporter; the information from the discovery will be used by your lawyer to plan your next steps (e.g., for trial or for a possible settlement)

Examinations for discovery: The value of early answers

By taking part in an examination for discovery, parties can be better prepared for trial. This step helps uncover key details and reduces the likelihood of surprises.

If you want peace of mind before entering the courtroom, speaking with a skilled litigation lawyer is a smart move. Lexpert's rankings can help find the right expert for your legal needs.

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