By Matt Lalande in Uncategorized on December 03, 2023
After you receive a letter from your lawyer advising you about the time and date of your upcoming discovery you will no doubt have questions.
These are NOT uncommon questions.
If you find yourself involved in a civil lawsuit in Ontario, it’s important to understand the journey you’re embarking on. As you know by now, a civil lawsuit is a way to resolve disputes where you or another party seeks compensation for some harm or loss, whether as a result of personal injury, wrongful death, denied long-term disability, pediatric related injuries or employment terminations to name a few.
This process starts with filing a statement of claim – or the exchange of pleadings, as lawyers call it. Then, the process moves through several stages, each one important in its own right. After the exchange of pleadings, the next key stage is the ‘Examination for Discovery.’
Think of it as a meeting where the lawyers from each side get a chance to ask questions to the other party under oath. It’s a bit like an interview, where each side learns more about the other’s case. This step is crucial because it helps clarify the issues at hand and shapes the strategies for trial. Through this guidebook, we’ll walk you through the Examination for Discovery, breaking down what it means for your case and how you can prepare for it. Understanding this part of the process can make a big difference in how you approach your lawsuit.
Think of it this way. If you are personal injury plaintiff client who has advanced a lawsuit for damages, the only thing the insurance company and defence lawyer know of you until your discovery is what they read on paper – meaning in your economic and non-economic productions that your lawyer has provided. There comes a time in all lawsuits where each side gets to meet and question the other side (you are generally not face to face with the other witness – you are being questioned by their lawyer) in order to achieve several important purposes:
In summary, examinations for discovery in Ontario lawsuits are a vital part of the legal process, helping to ensure that trials are fair, efficient, and based on a complete understanding of the facts and evidence.
Your lawyer, the opposing side’s lawyer and the Court reporter are generally present.
Prior to COVID, examination for discoveries normally took place at reporting centers. During COVID examination for discoveries took place over ZOOM due to isolation requirements – which then became a convenient and excellent way for discoveries to take place due to the distance of the various parties involved. Post COVID, many people have realized that and accepted the convenience of discoveries by zoom, and as a result – many examination still take place over the video-conferencing platform – as well as in-person.
No – this is not the purpose of Examination for Discovery. While personalities of lawyers all differ, the purpose of examination for discovery in Ontario is to allow parties in a legal case to obtain relevant information, assess the strengths and weaknesses of their respective positions, and facilitate the settlement or preparation for trial by questioning witnesses and examining documents.
In a personal injury car accident case, you will typically be asked questions concerning:
In terms of the accident, you may be asked such questions as the type of car you were driving, whether you were the owner, the year, make and model of your car, the state of repair of the vehicle including the age and wear and tear on the tires, brakes, horn, lights, steering and windshield wiper and the mileage on the vehicle.
You will also be asked whether the vehicle was equipped with headrests, whether they were adjustable, whether they were adjusted for your height and how far the headrest came up to the back of your head.
You might also be asked whether the car was equipped with seatbelts and if so what kind (lap or shoulder) and whether you had a seatbelt on at the time.
You may also be asked whether you had the consent of the owner to drive the vehicle, whether you had a valid Ontario Driver’s Licence at the time of the collision or whether there were any restrictions on your license (such as a requirement that you wear glasses). You may be asked if you were familiar with the vehicle you were driving, and if so, on how many occasions had you driven the vehicle, your general health at the time of the collision, the quality of your eyesight and hearing, your general physical and mental condition, whether you had consumed any alcohol or taken any drugs within a twenty-four hour period before the collision and so on.
In terms of how the accident happened – you may be asked about the facts leading up to the collision and more specifically:
In terms of the car accident itself, the insurance lawyer may ask questions such as:
In personal injury cases, an examination for discovery involving a plaintiff’s injuries is a crucial step for several reasons.
Firstly, it allows the defense to thoroughly understand the extent and nature of the injuries claimed. This understanding is essential for evaluating the validity and potential value of the plaintiff’s claim in terms of compensation.
Secondly, the examination often uncovers additional details or evidence that may not be apparent in medical reports or initial statements. It serves as a means to probe the consistency and credibility of the plaintiff’s account of their injuries and how these injuries impact their life.
Finally, the information gathered during this examination can be vital for both sides in formulating their strategies for negotiation or trial. It can lead to a more informed settlement discussion or, if the case proceeds to trial, provide essential insights for the presentation of evidence and arguments.
The defence will likely ask you to list your injuries from head to toe. Then, comprehensive questions will be asked in terms of each injury in order to determine whether your complaints are consistent with your medical records and what you have been telling medical and rehab providers.
You will be asked about ongoing symptoms, the duration and intensity of symptoms, whether your symptoms are brought on by factors such as activity, weather, positioning, standing, sitting or are they brought on randomly – for example.
When answering questions, we always emphasize that clients must be accurate and truthful. Clients should never exaggerate in any way or tell any untruths. Defence lawyers and judges hear hundreds of these cases every year and can tell after a few minutes of testimony whether a client is attempting to exaggerate or is saying something that is untrue.
You may also be asked about injuries not related to the car accident. Remember the Defendant’s lawyer has obtained your decoded OHIP claims summary that includes all of your doctor visits in the three years prior to the accident. This includes everything from the common cold to stubbing your toe. If you had a runny nose 3 years ago, the other lawyer will know about it.
With respect to household activities, it is not uncommon for the injured person to have difficulty doing heavier types of chores such as vacuuming, laundry, cutting the law, shoveling snow and taking out the garbage.
In most cases the injured person can do the chores under circumstances of pain and discomfort and fatigue with the end result being that the person does some of the chores and gets some help from family members in doing others.
Further, instead of being able to do the vacuuming in one shot, in one hour, the person now might have to break the vacuuming up into three different time frames and do the vacuuming in periods of twenty minutes over three days.
In a personal injury case, when examining a plaintiff’s employment income and economic losses, a defence lawyer will typically ask a range of questions to understand the financial impact that injuries have had on the person. These questions may include:
These questions aim to comprehensively understand the economic toll of the injury on the plaintiff, which is crucial for calculating a fair compensation amount.
Under our Rules of Civil Procedure, you are obligated to give the names and addresses of those persons who might reasonably be expected to have knowledge of the occurrences and transactions in issue in the law suit. We encourage our clients to bring to the office the names, addresses and telephone numbers of possible witnesses to their preparation for dicovery meeting – including witnesse home and business addresses including postal codes and the home and business telephone numbers.
We always remind our clients that the examination for discovery is a process in all personal injury cases. No matter if you are 9 or 90, you will need to most likely attend discoveries and give evidence on the accident as well as you economic and non-economic losses. We recommend that our clietns be consistent wth medical documentation, mention everything about their pre-accident health no matter how insignificant and most important of all – always be truthful – no matter what. If you are not, and the matter proceeds to trial and your evidence is not consistent with the medical documentation, the other lawyer will have absolute irrefutable evidence given under oath that you might attempting to exaggerate your symptoms for monetary gain. The other lawyer will try to show that because your evidence was inconsistent with what you told doctors – there is no reason why you can be believed on any point. This will have a very harmful effect on any settlement discussion and the lawsuit overall.
If you have any questions about your examination for discovery, call us today. Feel free to schedule a free consultation with our Hamilton Personal Injury Lawyers in order learn more about how we can help recover your economic losses and obtain the compensation you deserve. We are located in downtown Hamilton and have served the community for over two decades. Call us today, no matter where you are in Ontario at 1-844-LALANDE or local in the Southern Ontario region at 905-333-8888. Alternatively, you can send us a confidential email through our website – and we would be happy to explain your legal options to you, at no cost.