If you’ve ever followed US based law shows such as Suits or Law and Order, you are likely familiar with depositions. This is the part of the lawsuit where the lawyer gets to ask the opposing party questions about their lawsuit. Those shows sometimes depict depositions as dramatic moments in a case when the client unintentionally reveals something that they shouldn’t have or even the location of the “smoking gun”.

In Ontario, we have a similar process called Examinations for Discovery. They are generally MUCH less dramatic and serve as more of a fact-finding process. It’s usually the first time the parties come together to “discover” evidence in the case and sometimes move the case closer to settlement.

What is an Examination for Discovery?

The lawsuit is always commenced with filing of the Statement of Claim which is the first document outlining the injured person’s case followed by the filing of a Statement of Defence on behalf of the defendant. From there, the next step is usually Examinations for Discovery.

The purpose of an Examination for Discovery is to obtain (discover) the evidence that the opposing party is likely to rely on in their case. For example, in a motor vehicle accident case, we as lawyer for the injured person will want to ask the at-fault driver questions to determine what the defendant will say about what happened in the accident. We almost always have the police report in advance which tells us what happened but we often need more. We also don’t like surprises. We will ask what the at-fault driver will say happened in the moments leading up to the accident, how the accident happened, and what transpired after. We will want to know if they were distracted or if they will try and suggest that our client did anything to cause the accident.

Once the defendant has been examined, the injured person (plaintiff) is examined next. If liability is not an issue meaning it’s clear that the defendant is at fault then the focus of that discovery will be on pre-existing medical issues, injuries sustained in the accident, treatment and impact on employment, housekeeping, and recreational activities. The lawyer for the defendant will want to know what the injured person will say about how the accident has impacted their life. At the same time, they will want to know about any pre-existing medical issues that might also be an explanation for the injured person’s impairments.

Most of our cases get to the Examinations for Discovery stage. In advance, we meet with each client to discuss the process in detail, provide examples of questions the other lawyer is likely to ask, and go over the medical records and other evidence in the case. That way, our client is well prepared and ready to answer any questions.

Examinations for Discovery are an important part of the claims process and usually a big step towards resolution. They help inform all parties about what the evidence really is in a case and by doing that, promote parties to try and reach a settlement.

ABOUT THE AUTHOR

Casey Dorey is an associate lawyer at Bergeron Clifford LLP. He works primarily in Kingston but travels across Eastern Ontario.

Casey obtained his LL.B from the University of Leicester, United Kingdom, with First Class Honours. While in law school, Casey was a Moot Court champion and represented the school externally in London, England. He was also awarded the Canadian Spring Scholarship.

He has appeared before the Ontario Superior Court of Justice, Small Claims Court, Criminal Injuries Compensation Board, and the Social Security Tribunal.

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