Examinations for Discovery in Ontario: What to Expect

An examination for discovery is one of the most important — and most nerve-wracking — steps in an Ontario civil lawsuit. You are placed under oath, a lawyer from the other side asks you questions, a court reporter records every word, and your answers can be used against you at trial. Understanding what an examination for discovery is and how to prepare for one can make a significant difference in your case.

This guide explains how oral discovery works under Ontario's Rules of Civil Procedure, what you must answer, what you can refuse, and how to handle undertakings.

What Is an Examination for Discovery?

An examination for discovery (often called "oral discovery" or simply "discovery") is a pre-trial procedure in which one party questions an opposing party under oath, outside the courtroom, before a court reporter who produces a transcript.

The goals are straightforward:

• Find out what the other side's evidence is
• Lock in the other party's version of events
• Gather admissions that support your case
• Identify weaknesses in both sides' positions before trial

Discovery promotes settlement and prevents surprises at trial. It is one of the primary tools in civil litigation.

Who Can Be Examined?

In most civil actions, each party may examine one representative of each opposing party. For individual parties, that person is typically the plaintiff or defendant themselves. For corporations, the examining party selects the officer or employee they want — though the corporation can object if the chosen person has no relevant knowledge, and the parties may negotiate who attends.

Under the Simplified Procedure (for claims at or below $200,000 as of writing — verify), discovery rights are more limited. Each party may examine one opposing witness for up to two hours unless the court orders otherwise.

How Is It Set Up?

Discovery does not take place at the courthouse. It is typically held at:

• A court reporter's office
• A lawyer's boardroom
• Virtually (video examinations are common and are permitted)

The parties arrange the date and location between counsel. A court reporter attends to administer the oath and produce the transcript. Counsel for both sides are present. The witness's own lawyer may interject — but only on limited grounds.

What Questions Must You Answer?

The scope of questions at discovery is very broad. You must answer any question that is:

• Relevant to any matter at issue in the pleadings
• Not protected by privilege (e.g., solicitor-client privilege covers your communications with your own lawyer)

Questions do not need to be admissible at trial — they just need to be relevant to the issues. This means you may be asked about documents, communications, conversations, events, financial records, third parties, and much more.

Things You May Refuse to Answer

You may properly refuse to answer a question if:

• The question calls for information protected by solicitor-client privilege
• The question is irrelevant to any pleaded issue
• The question requires you to disclose information covered by settlement privilege (settlement discussions)

A refusal should be stated clearly and the reason given. Disputes about refusals are brought back to court on a motion if the parties cannot agree.

Undertakings

When you are asked a question you cannot answer on the spot — because you don't have the information with you, or because you need to look something up — your lawyer will usually give an undertaking (a formal promise) to provide the answer after the examination.

Undertakings must be taken seriously. Failing to answer undertakings is a breach of your obligation to the court and can result in:

• A court order compelling answers
• Costs against you personally
• In serious cases, sanctions or adverse consequences at trial

After the examination, counsel will compile and respond to undertakings in writing. This phase can take weeks or months on a complex file.

How Your Answers Can Be Used at Trial

Discovery transcripts are powerful. If you say something at discovery that you later contradict at trial, opposing counsel will read the discovery answer to the court and ask you to explain the inconsistency. Judges notice. Credibility is everything in civil litigation.

This is why preparation for discovery is critical. You should:

• Review all documents in the case before attending
• Re-read the pleadings so you understand the issues
• Meet with your lawyer beforehand to discuss likely questions
• Answer questions honestly, directly, and without volunteering extra information

You are not required to guess. If you do not know the answer, say so. If you cannot remember, say so.

Deemed Undertaking Rule

Information produced or obtained through discovery is subject to the deemed undertaking rule. This means documents and information received from the other side can only be used for the purposes of the litigation — not shared publicly, not used in other proceedings, and not disclosed to third parties. Violating the deemed undertaking rule can result in contempt.

Discovery Motions

When parties disagree about what must be answered or produced, the dispute goes before a judge or master on a discovery motion. The court can order a party to:

• Answer refused questions
• Satisfy outstanding undertakings
• Produce documents that were improperly withheld

Discovery motions cost money and delay the case. The best approach is for counsel to resolve disputes by correspondence before bringing a motion.

Frequently asked questions