An examination for discovery in Ontario is a formal opportunity for a party to answer questions under oath before trial. The answers, documents and consistency of the evidence may affect how a personal injury case is assessed. This guide explains what to expect and how to prepare.
Key takeaways: Review the pleadings and records, answer accurately, avoid guessing, listen carefully and discuss preparation with counsel.
What is an examination for discovery?
An examination for discovery is a formal question-and-answer session that takes place before trial. The injured person (the plaintiff) is questioned under oath or affirmation by the defendant’s lawyer, with a court reporter recording everything. The plaintiff’s own lawyer attends. Discovery usually takes place in an office or by video, not in a courtroom, and there is no judge present.
The transcript can be used later, including at trial. If the plaintiff gives a different answer at trial, the defence may point to the transcript to suggest the plaintiff is unreliable.
Why describing pain is so difficult
Pain, fatigue, anxiety and other symptoms are personal experiences. Many people find it hard to put them into words, particularly in a formal and stressful setting. Some people understate their symptoms out of pride or habit; others struggle to describe how symptoms affect specific tasks.
Judges and juries cannot follow a plaintiff through their daily life. They rely heavily on what the plaintiff and other witnesses say, and on the medical records. In criminal cases, the Criminal Code allows a jury, in some circumstances, to take a “view” of a place or thing (section 652), but there is no comparable practice for observing a plaintiff’s daily life in personal injury cases.
“Day in the life” evidence
Some plaintiffs use “day in the life” videos to show how their injuries affect everyday tasks such as dressing, cooking or getting into a car. Whether such evidence is admitted, and how much weight it receives, is decided by the court, and the defence may challenge it. Testimony from family members, friends and co-workers can also help show changes in a person’s life.
Consistency with medical records
The defence will compare the plaintiff’s evidence with years of medical records. Treating doctors and therapists write down what patients tell them. If a plaintiff reports serious ongoing pain at discovery, but the records show few complaints, the defence may argue the symptoms are exaggerated.
For this reason, it is important to report symptoms accurately and consistently to treating providers throughout the claim, including symptoms that seem minor or embarrassing. Attending recommended treatment also matters. Missed appointments and gaps in treatment can be used to suggest that injuries were not as serious as claimed.
How to prepare
• Meet with your lawyer before discovery to review the process and the issues.
• Review your own records, such as your treatment history, work history and prior injuries or accidents, so you can answer accurately.
• Think in concrete terms: how far you can walk, how long you can sit, which tasks you have stopped or changed, and how often symptoms occur.
• Keep a symptom diary in the months before discovery, if your lawyer recommends it.
• Be honest about prior and later accidents and health conditions.
During the examination
• Listen to the whole question and pause before answering.
• Answer only the question asked; do not guess or speculate.
• If you do not understand a question, say so.
• If you do not know or cannot remember, say that.
• Do not exaggerate or minimize; describe your experience accurately, including good days and bad days.
• Stay calm and polite, even if questions feel personal.
• Remember that undertakings, or promises to provide information later, should be fulfilled promptly.
At trial
At trial, the plaintiff testifies in a courtroom before a judge, or a judge and jury, and is cross-examined by the defence. The same principles apply: honesty, accuracy and consistency. The plaintiff’s credibility is often one of the most important issues in the case.
Discovery of the defendant
The plaintiff’s lawyer also examines the defendant, or a representative of a corporate defendant, under oath. This allows the plaintiff to learn the defendant’s version of events and any defences. Information obtained from the defendant at discovery may help assess liability and settlement value.
After discovery
After examinations for discovery, both sides usually have a clearer picture of the evidence. This often leads to expert reports, mediation and settlement discussions. The transcript from discovery remains part of the record and may be relied on later, which is another reason to review it carefully and correct any errors through the proper process.
Conclusion
An examination for discovery in Ontario requires careful preparation and accurate evidence. Contact Booni Law at admin@boonilaw.com or +1 (226) 271-1751 to discuss preparation. No outcome is promised.
Frequently Asked Questions
How long does an examination for discovery last?
It varies with the case. The Rules of Civil Procedure place limits on the length of discovery in many cases. Your lawyer can give an estimate.
Can I bring notes to my discovery?
Generally, you should not rely on notes, and anything you refer to may have to be produced. Discuss this with your lawyer.
What if I make a mistake at discovery?
Tell your lawyer. Corrections can be made in the appropriate way, and it is better to correct an error than leave it.
Why do missed appointments matter?
The defence may argue that gaps in treatment show the injuries were less serious. Attending treatment and explaining any gaps helps.
Preparing to give evidence?
If you have an upcoming examination for discovery or trial in a personal injury claim, Booni Law can explain the process and what to expect. Email Booni Law at admin@boonilaw.com or call +1 (226) 271-1751. No outcome can be guaranteed; preparation helps you give your best evidence.
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create a solicitor-client relationship between you and Booni Law. The information in this article may not reflect the most current legal developments and should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you require legal advice, please contact Booni Law.
