Updated June 2014
This How-To Brief outlines the steps to take when preparing for an examination for discovery in a civil action.
Note: Rule 76.04 of the Rules of Civil Procedure governs examination for discovery in actions under the simplified procedure.
1Gather what you will need
- The client's file, including pleadings, notes from interviews, the client's affidavit of documents and productions
- The other party's affidavit of documents and productions
- Rules of Civil Procedure (See the link to the Rules of Civil Procedure in the Statutes and Rules section of this How-To Brief.)
- Applicable Practice Directions (See the link to the Superior Court of Justice Practice Directions and Policies effective July 1, 2014 in the Resources section of this How-To Brief. As of July 1, 2014, the provincial and regional Practice Directions for all proceedings in the court have been consolidated and all previously issued Practice Directions revoked.)
- Rules of Civil Procedure Forms:
- Form 4A, General Heading of Documents — Actions
- Form 4C, Backsheet
- Form 16B, Affidavit of Service
- Form 30A, Affidavit of Documents (Individual)
- Form 30B, Affidavit of Documents (Corporation or Partnership)
- Form 30C, Request to Inspect Documents
- Form 34A, Notice of Examination
- Form 35A, Questions on Written Examination for Discovery
- (See the link to the Rules of Civil Procedure Forms in the Statutes and Rules section of this How-To Brief.)
- Courts of Justice Act (See the link to the Courts of Justice Act in the Statutes and Rules section of this How-To Brief.)
- Firm precedents, if any, and library resources for precedent material
2Book the examination for discovery
- The right of discovery is established by R. 31. Generally, a party to an action may examine for discovery any other party adverse in interest once and may examine that party more than once only with leave of the court (r. 31.03(1)).
- Consider whether to conduct the discovery by way of oral examination (R. 34) or written questions (R. 35). Note that the examining party is not entitled to subject a person to both forms of examination except with leave of the court. Also, where more than one party is entitled to examine a person, the discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise (r. 31.02).
- The plaintiff's lawyer usually initiates the examination for discovery. However, it is the party who first serves a notice of examination (Form 34A) under r. 34.04, or a list of the questions to be answered (Form 35A) under r. 35.01, who may examine first and complete the examination before being examined by the other party, unless the court orders otherwise (r. 31.04(3)).
- Where oral examinations are on consent, consider arranging an appointment for the examination of both parties on a date and at a time convenient to both sides (r. 34.06).
- Book an appointment with an official examiner or at the law office of one of the parties. In the latter case, arrange to have a court reporter present.
3Prepare and serve a notice of examination
- A party may serve a notice of examination under r. 34.04 or a list of questions to be answered under r. 35.01 only after (a) a defence is delivered, and (b) the examining party has served an affidavit of documents (rr. 31.04(1)—(2)).
- Consider who should be examined on behalf of the opposite party. See r. 31.03.
- Use Forms 4A, 4C and 34A (oral examination) or 35A (written questions).
- On an oral examination of a party to the proceeding, the notice of examination must be served on the party's solicitor of record (r. 34.04(1)). Where the person to be examined resides in Ontario, that person shall be given not less than two days' notice of the time and place of the examination, unless the court orders otherwise (r. 34.05(1)). Every party to the proceeding, other than the examining party, shall be given not less than two days' notice of the time and place of the examination (r. 34.05(2)).
- On an examination by written questions, the list of questions shall be served on the person to be examined and every other party (r. 35.01). The written questions shall be answered by the affidavit (Form 35B) of the person being examined, served on the examining party within 15 days after service of the list of questions (r. 35.02(1)). The examining party shall serve the answers on every other party forthwith (r. 35.02(2)).
- Retain proof of service in the form of an affidavit of service (Form 16B) in the client's file in the case of non-attendance (r. 16.09(1)).
- Add a copy of the notice of examination to the pleadings brief.
4Review the pleadings in the action
- For a question to be allowed and not refused at discovery, it must be relevant. This means that the question must relate to any matter in issue in the proceeding as raised by the pleadings and particulars. Have a working familiarity with all pleadings in the action.
- Create a pleadings summary, if necessary, to summarize the key points raised in each pleading.
- Summarize potential lines of questioning applicable to each pleading, keeping in mind the elements of any causes of action and applicable defences that you want to explore.
5Review the key documents
- Review the client's affidavit of documents, productions and privileged documents.
- Review the other party's affidavit of documents and productions. Where necessary, serve a request to inspect documents (Form 30C) on the solicitor for the opposite party. You will be entitled to an appointment within five days of your request to see and obtain a copy of the required documents at your own expense (r. 30.04).
- Prepare a key documents brief consisting of the following:
- documents that establish a key fact in the case
- documents that you want admitted at discovery to be used as evidence at trial
- documents that you want the examinee to comment on during the examination
6Prepare an event chronology
- Summarize material events in chart form, based on a review of the pleadings, documents and interviews with witnesses.
- Consider how you plan to argue the case in your closing argument at trial.
- Identify areas where more facts are needed so that you can address these areas during the examination.
7Prepare a list of discovery questions
- Review r. 31.06 and the relevant case law regarding the permissible scope of the examination.
- Create a list of general questions regarding the background of the examinee and the context of the incidents in issue.
- Create a list of specific questions designed to address particular aspects or issues raised by the action. Use headings to break up different issues.
- Consider asking about potential witnesses (r. 31.06(2)), expert opinions (r. 31.06(3)) and insurance policies (r. 31.06(4)).
- Review these lists thoroughly so that you are familiar with the questions before the examination.
- Review R. 34 for the procedure on oral examinations.
8Brief your client on the discovery process
- Explain the purpose and process of the examination for discovery.
- Review your client's affidavit of documents, productions and privileged documents. Have your client review these items as well.
- Have your client review the opposite party's affidavit of documents and productions.
- Review the event chronology and highlight contentious areas.
- Advise your client of the duty to correct answers given on examination as set out in r. 31.09.
- Consider conducting a mock examination with your client so that the client is familiar with the process.
Affidavit of documents: A listing of documents relevant to any matter in issue in a proceeding that are or have been in a party's possession, control or power. The listing is a kind of statement made under oath.
Document: Includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form (r. 30.01(1)(a)).
- Examination for discovery demonstration: This demonstration uses the following case scenario: Michel Fortier has sued Deep Woods Camp Inc., its principals, Thelma and Gordon Denison, and others for personal injuries he sustained while volunteering as a counsellor-in-training at the camp. Fortier was injured when a partially constructed cabin wall fell and struck him on the back of his head. Thelma Denison is being examined for discovery in her personal capacity and as a representative of the corporate defendant.
- Sample affidavit of documents
- Sample notice of examination
- Superior Court of Justice Practice Directions and Policies
- Alan C. Preyra & Ronald J. Preyra, "Building a Better Case, Being Better Prepared"
- Discovery Best Practices: Practical and Effective Tools to Guide You through the Discovery Process (Toronto: Continuing Legal Education, Law Society of Upper Canada, 2004). Order this publication through the AccessCLE website or Rreview this publication at your local law library (see AdvoCAT Great Library Catalogue) or order it through the AccessCLE website. The website includes a search function to find other relevant articles from The Law Society of Upper Canada's Continuing Professional Development programs..
- Fred D. Cass, Peter Y. Atkinson & John J. Longo, Discovery: Law Practice and Procedure in Ontario (Toronto: Carswell, 1993)
Statutes and Rules