What is an examination for discovery? It is a question-and-answer session, under oath, in which the opposing lawyer gets to question you about the lawsuit before trial. There is usually no judge in the room. A court reporter records everything, and what you say can later be read to the court.
For many people, this is the most nerve-racking stage of a civil case. It feels like trial, even though it takes place in a rented boardroom or on a video call, with bad coffee and a stack of binders. It usually happens long after the events at the centre of the dispute, when memories have faded. The good news is that discovery rewards preparation more than anything else. You do not need to be polished or clever. You need to know your documents and tell the truth carefully.
The information below is general and is not legal advice. It describes the process under Ontario’s Rules of Civil Procedure. Your own lawyer will prepare you on the facts and strategy of your case, and their instructions should come first.
Where Discovery Fits in a Lawsuit
An ordinary Superior Court action moves through the following stages. A plaintiff issues a statement of claim, and the defendant delivers a defence. Parties then exchange sworn affidavits of documents listing all relevant records, followed by oral examinations. After that come undertakings, motions if required, mediation or other settlement efforts, a pre-trial conference, and trial.
In the Brampton courthouse, the trial list can seem a long way off at this point. Discovery typically does not take place at the courthouse at all. It is usually held at a court reporting office in the region or by videoconference. It is a private process run by the parties and their lawyers.
A note on the rules: Ontario’s civil procedure has been under a major review, and the proposals published would sharply reduce or replace oral discovery in many cases. As with any process, ask your lawyer to confirm the rules that currently apply to your action.
The Limits
Under Rule 31.05.1, a party generally may not exceed a total of seven hours of oral examination, regardless of the number of parties or others to be examined, unless everyone consents or the court gives permission.
If your case is proceeding under the simplified procedure in Rule 76, used where the claim is for $200,000 or less in most cases, the limit drops to three hours. In Small Claims Court, there is no examination for discovery in this sense. Disclosure takes place through the pleadings and settlement conference, and you will meet the other side’s questions for the first time at trial.
The seven-hour figure is a cap, and many examinations are shorter. Plan to be available for the whole time, though, and clear your day.
What You May Be Asked
Rule 31.06 requires a person being examined to answer, to the best of their knowledge, information and belief, any proper question relevant to any matter in issue. That is a broad standard. You can expect questions about:
- Your background, work, and relationship to the other parties.
- The full history of the events, often in painstaking order.
- Every document in your affidavit of documents, and what you did to find those documents.
- What you said or wrote to others about the dispute, including texts.
- The losses you are claiming, and how you calculated them.
- Your knowledge of what other people did, and who those people are.
The phrase “information and belief” trips people up. If you do not personally know something but were told it by your bookkeeper, the question can still be asked, and you may have to say what you were told and by whom. You may also be asked to find out information you could reasonably get.
Your own lawyer will usually object to a question if there is a real basis for it, such as privilege. Conversations with your lawyer for the purpose of legal advice are generally protected. Under Rule 34.12, an objection is noted on the record, and any dispute about the question can be taken to a motion later.
Preparation That Actually Helps
Set aside time for this, and spread it across more than one sitting.
Read your pleadings. Your statement of claim or defence sets out your position. You should know what it says, and tell your lawyer right away if something in it is wrong.
Read your documents, then read them again. Most of the questions will come from these. You should recognize every email, invoice, and text message in your affidavit of documents. If a document is unclear or damaging, the time to talk about it is during preparation, not on the record.
Build a private chronology. Writing out a timeline helps your memory. Talk with your lawyer about whether to write it for the lawyer’s use, and do not bring new notes to the examination without advice. Documents you use to refresh your memory might have to be produced.
Look for gaps. Did you search all of your email accounts, phones, and cloud folders? You will be asked. Missing documents are much easier to deal with before the examination than to explain in the middle of it.
Do a practice run. Ask your lawyer to question you like the opposing side would. Hearing a hard question out loud for the first time at the actual examination is an avoidable mistake.
Arrange interpretation early. Brampton has many litigants who are more at ease in Punjabi, Hindi, Urdu, Tamil, or another language. Under Rule 34.09, where a party needs an interpreter, the party provides a competent and independent one. A family member is not the right person. Tell your lawyer early so a qualified interpreter can be booked, and consider using one even if your conversational English is strong. Precise legal questions under pressure are different from daily conversation.
How to Answer
Most of the skill lies in a few simple habits.
Listen to the whole question. Pause before you start. The pause gives you time to think and gives your lawyer time to object.
Answer the question that was asked, then stop. Silence can feel uncomfortable, and many people fill it. Volunteering extra explanations opens new topics. If you are asked whether you received an email, the answer may be “Yes.” You do not need to add your theory of why it was sent.
Tell the truth, including the unhelpful parts. Lying under oath is serious, and inconsistent evidence can do huge harm to your credibility. A bad fact that is admitted plainly usually does less damage than one exposed after evasion.
Do not guess. “I don’t know” and “I don’t recall” are honest answers when they are true. They are not magic words, however. If you say you don’t recall something that any reasonable person would remember, it can look evasive. If your memory is partial, say what you remember and where it stops.
Ask to see documents. If you are being asked about a letter or date, you can ask to review the document before answering.
Ask for a clear question. If you do not understand, say so. If a question assumes something untrue, such as “When you stopped paying,” correct the premise.
Stay even-tempered. Some lawyers are friendly, while others are aggressive. Both may be trying to learn how you will come across at trial. Arguing or getting sarcastic rarely helps you. Avoid looking at your lawyer for answers.
Rules 34.14 and 34.15 give the court tools to deal with improper conduct on either side, including refusals to attend or to answer proper questions. Failing to show up has consequences and can lead to costs or more serious orders.
Undertakings, Refusals, and “Under Advisement”
During the examination, you will likely hear these words:
- Undertaking. A promise, usually made through your lawyer, to provide information or a document afterward.
- Under advisement. Your lawyer will consider the question and respond later.
- Refusal. The lawyer objects and you do not answer.
Keep a list of undertakings and act on them promptly. Under Rule 31.07, if a question is refused or is taken under advisement or subject to an undertaking and no answer is provided within 60 days, there can be consequences, including limits on your ability to use that information at trial without permission.
After the Examination
Your duty to correct. Under Rule 31.09, if you later find that an answer was incorrect or incomplete, or is no longer correct and complete, you must promptly provide the information in writing to the other parties. Tell your lawyer the moment you realize a mistake. The correction may be treated as part of the original examination, and the other side can ask further questions, but it is far better than leaving a known error on the record.
Transcripts. The reporter can prepare a written transcript, and you should read yours with care. It can be an unpleasant experience to see how spoken English looks on paper, but the transcript is what everyone will rely on from that point forward.
How it can be used. Under Rule 31.11, the other side may read parts of your examination into evidence at trial as part of their own case, and they can use it to challenge your testimony if your story changes. That is why consistency matters so much.
Keep it confidential. Rule 30.1 imposes what is called a deemed undertaking. Parties and lawyers generally may not use evidence or information obtained through discovery for purposes outside the lawsuit, subject to exceptions. Do not post pieces of the transcript or documents online, or share them with people in your community to prove a point.
The Day Itself
Sleep well, eat something, and bring only what your lawyer tells you to bring. Dress as you would for an important business meeting. Keep your phone off, and do not record anything yourself. If you are attending by video, sit in a private, quiet room with a strong connection, and do not have anyone else in the room unless your lawyer has approved it. Take a break if you need one, although you may not be allowed to interrupt a pending question, and discussions with your lawyer during breaks can be subject to limits in certain situations. Your lawyer will explain the ground rules.
If an examination has been scheduled in your lawsuit and you feel unprepared, or if you are representing yourself and overwhelmed, a focused preparation session can make a real difference. Our civil litigation group handles matters at this stage, and our page on civil motions and applications explains what can follow if disputes about questions end up before the court.