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What is an Examination for Discovery?

Examination for discovery is one of the most important parts of a personal injury case. It allows the parties to meet and preview the evidence for mediation, trial, and settlement.

The Plaintiff (person or persons who have been injured or wronged) and their lawyer(s) will arrange a time to meet for the examination with the Defendant(s). The examination itself is conducted virtually or in-person. The goal of the examination is to “discover” the evidence that is intended to be used to support a claim for damages. The Defendant is allowed to ask questions to the Plaintiff about what happened during an accident / incident and what proof is available to support his / her version of events. The Plaintiff’s lawyer acts as a guide and protector for the Plaintiff to ensure the questions asked are civil (polite) and relevant to the case. During an examination for discovery, a court reporter will be in attendance who writes / types everything that is said – both the questions and the answers. The Plaintiff(s) will be asked to swear or affirm to tell the truth as the answers given can be used at a trial.

At a separate time, the Plaintiff’s lawyer gets to examine the Defendant(s) with their lawyers subject to the same rules and principles. In Ontario, the “rules” for conducting an examination of discovery that is legally binding are contained in the Rules of Civil Procedure. These Rules can be found in the Courts of Justice Act, R.R.O. 1990, at Regulation 194. Following “discoveries” of the Plaintiff(s) and Defendant(s) the answers to the questions posed by both sides may form the basis of evidence used to support a claim for damages in the form of an “undertaking”. This refers to an agreement given at a discovery to obtain and provide a specific piece of evidence to support or refute a claim. Each specific piece of evidence e.g. the records of a medical doctor, an OHIP summary, an accident report constitutes a separate undertaking.

Without the presence of a lawyer to protect the interests of a Plaintiff, a discovery can become arduous and confusing. Even scheduling a discovery takes time and effort. Your lawyer should know whether or not they wish to use the ‘Simplified Procedure’ for lawsuits claiming for $200,000 or less in damages versus the ‘Ordinary Procedure’. No matter which procedure is used, the results are what matter. In the case of discoveries, the results should be clear and precise undertakings that will create a road map to fruitful negotiations and settlement.

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