Refusing to Answer Questions on Discovery in Ontario: Grounds and Consequences

Sitting across from opposing counsel at an examination for discovery, being asked question after question under oath, it's tempting to think you can simply decline to answer anything you find uncomfortable. You can't — but you can, in the right circumstances, properly refuse to answer a question. Knowing the difference between a valid refusal to answer discovery questions and an improper one matters, because getting it wrong has consequences either way.

This article covers the grounds that actually justify a refusal in Ontario civil litigation, the grounds that don't, and what happens once a refusal is on the table.

Valid Grounds to Refuse to Answer a Discovery Question

A refusal generally has to rest on one of a few recognized bases:

• Relevance — the question doesn't relate to a matter in issue in the lawsuit.
• Privilege — the answer would reveal a privileged communication, such as legal advice from your lawyer.
• Improper form — the question is argumentative, seeks a legal conclusion rather than a fact, or is otherwise not a proper discovery question.
• Proportionality concerns — in some cases, a question may be so burdensome to answer relative to its value to the case that it's challenged on that basis.

A lawyer present at the examination usually advises the witness in real time on whether a question falls into one of these categories, or whether the safer course is to answer and deal with any concern afterward.

Grounds That Usually Won't Work

Some instincts that feel justified in the moment don't actually hold up as valid refusals:

• "I don't want to answer because it's embarrassing" — discomfort alone is not privilege or irrelevance.
• "The answer might hurt my case" — an unfavourable answer is not, by itself, a reason to refuse.
• "I don't remember exactly, so I'd rather not guess" — this generally calls for an honest "I don't recall" or an undertaking to check, not a refusal.
• "The other side already knows the answer" — irrelevant to whether you're obligated to answer.

Refusing on one of these grounds, rather than a legitimate one, tends to invite a challenge — and if the challenge succeeds, you may simply be ordered to answer anyway, having added delay and possibly cost exposure for no benefit.

What Happens Right After You Refuse

When a question is refused during the examination, it doesn't just disappear from the record. Typically:

1. The refusal is noted on the transcript, along with the stated basis for it.
2. The examination continues with other questions — a refusal generally doesn't stop the whole process.
3. After the examination, the refusals are compiled into a list, alongside any undertakings given.
4. The other side reviews the list and decides whether to accept the refusal or challenge it.

The Process for Resolving a Refusal

If the other party disagrees with a refusal, there's a fairly standard path to resolving it:

1. Counsel typically discuss the disputed refusals directly first, since many get resolved or narrowed without any court involvement.
2. If agreement isn't reached, the party challenging the refusal can bring a motion asking the court to order an answer.
3. The court reviews the specific question and the stated basis for refusing, and decides whether the question should be answered.
4. If the motion succeeds, the witness may be required to attend a further examination to answer the question, and the court has discretion over costs of the motion.

Consequences of Refusing Without Good Reason

A pattern of improper refusals can do more than just cost a motion. It can:

• Signal to the court that a party is being evasive, which can colour how the court views that party's credibility later in the case
• Add delay and expense to a file that a straightforward answer would have avoided
• Result in a costs order against the party who refused improperly, consistent with Ontario's general "loser generally contributes to the winner's costs" approach on motions

None of this means you should answer everything reflexively. A properly grounded refusal, backed by sound legal advice, is a legitimate part of the discovery process — the goal is simply making sure the refusal is grounded in a real basis, not discomfort.

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