Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will talk about the discovery process in a civil proceeding in Ontario.  We will provide you with a very basic overview of what this discovery process is; what kind of principles apply to the discovery process and some of the Rules that apply to discovery process.  The lecture will be quite broad and will provide you with an overview so you can understand the discovery process itself.  As always we will begin with our usual disclaimer that this course and this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

A civil proceeding / a civil action can generally be divided into 3 parts the 1^st part is pleadings; the 2^nd is the discovery and the 3^rd is the trial.  We have covered pleadings in another lecture so I would ask you if you’re not familiar with pleadings to go and look at my other lectures.  Briefly speaking, pleadings are documents such as: statement of claim, statement of defence, reply, counterclaim, third party claim, etc.  These are the basic documents that you file and serve.  They contain the facts of your case and the legal basis for what you are claiming.  If you are claiming something against some party, that will be contained in the Statement of Claim.  You will have all the facts and what is the legal basis for such a claim.  In response the defending party will file their statement of defence.  These are the documents—the fundamental documents that contain what this case is about (what this action is about).  All of these documents are called pleadings.

Now discovery process, which as I said is the 2nd part of the civil action: what is the discovery process?  Let’s go through its definition in a bit more detail.  It’s a “pretrial procedure in a lawsuit where each party can obtain evidence from the other parties”.  The keyword here is each party and evidence to each party means that if you are plaintiff or a defendant, then you are entitled to obtain evidence from other parties or a party.  If there’s only one other party, then you can get evidence from that party but if there are more than one parties in this action then you are entitled to obtain evidence from each of those parties.  What will constitute evidence? What kind of evidence is provided or is obtained? I want you to keep this in mind.  The evidence should be evidence that is relevant to the issues in litigation. That’s the important part that it has to be relevant to the issues in litigation.  Let me give you an example of what could be relevant to the issues in litigation.  Let’s say you hired a contractor to renovate your kitchen and the contractor did not do a good job.  You are asking the court to give you damages for the harm that he, the contractor, may have caused you or for not doing the job properly.  You have some damages because the whole project did not go as it was contracted or as it was planned.  The relevant evidence would be whether there was a contract between the parties and if there’s a contract then a copy of that contract will be relevant evidence. What was agreed upon orally that could be relevant evidence.  If there were photographs of the kitchen, before, after or during the damage—all of those pieces of evidence would be relevant.  What would not be relevant is: how many kids does the contractor have; or how much money do you make through your living; because those are not relevant issues.  The court does not need to know the evidence of those issues to determine whether the contractor did the job properly or not.  The relevant issues or the relevant evidence is the one that is relevant to the very issues before the court / before the judge to decide the matter.

Now, another part that you want to keep in mind and it’s an important one is that the evidence could be good or bad, both kinds of evidence need to be produced.  For example, in this case while the contractor was doing this renovation, he ended up damaging your television in the living room.  Let’s say that during this renovation process he was recording each step of what he was doing.  There is a video that shows that the contractor actually damaged your television set.  Contractor has those videos.  You don’t have copies of those videos and that part of video or that part of evidence which actually shows that the contractor caused that damage to your television—is a pretty damning piece of evidence.   Is the contractor allowed to hide that video to suppress that evidence? No, even though the evidence could be bad for the contractor’s case the obligation under the Rules is still to provide that piece of evidence. Similarly, if you have any piece of evidence that is relevant but it is not favorable to your case, you are still required to provide that piece of evidence.  If it’s good or bad—you cannot be selective about what kind of evidence to produce as long as it is relevant whether it supports your case or it goes against your case you are required to produce that evidence. A natural question would arise, that why should you provide evidence that is not favorable to your case?  The basic idea behind it may be that we are in a fight – why should I help the other side’s case if I have evidence that goes against my case or that supports the other side’s case.  It’s a natural question. 

The answer to that question lies in the underlying legal principle which can be phrased in different ways.  One of the ways is that there is no trial by ambush in a civil legal proceeding. What this means is that there is a fundamental legal principle that our courts (common law courts) believe in a civil system: that is that each party is entitled to know full case and full evidence against it and each party is required to disclose all of the evidence that it has for its case,  so that when the matter goes to trial there really aren’t any surprises on both sides and all parties are ready to deal with the evidence that has been presented and there are no hidden pieces.  You can’t walk into a court at the day of trial and provide this damning piece of evidence and say “this is the evidence, that will win my case” and I never produced it before—because there will be consequences to the late production of that evidence. This is different from a criminal proceeding.  A lot of times our concept of surprise evidence comes from all these criminal shows that we watch where you notice that someone walks into the courtroom while the trial is going on and approaches the lawyer and provides a piece of paper or a photograph that actually destroys the case of the other side and that evidence is presented.  A lot of times our concept comes from that.  Most of those legal shows or dramas are dealing with criminal matters. I want to clarify and to be clear that criminal proceeding is fundamentally different than a civil proceeding.  In a criminal proceeding the Crown/the prosecutor has the burden to show without reasonable doubt whether the person who is accused has committed the offense that he or she is being charged for.  In a criminal proceeding the crown or the prosecutor has an obligation to disclose all of the evidence that they have against the accused to the accused or to his or her lawyer.  But the accused does not have any corresponding obligation to provide any evidence to the Crown—because the burden of proof rests entirely with the Crown.  In a criminal proceeding the accused does not even need to testify if he/she or his/her lawyer believes that the Crown has no case and they will not be able to establish beyond reasonable doubt that the accused committed what they are alleging that he or she committed.  In some criminal proceeding you will find that the accused never even attended and testified at all.  One most recent example I think of, is the Gian Ghomeshi case, where he was charged with sexual assault and certain sexual misconduct allegations criminally.  At trial, the Ghomeshi lawyer brought forward pieces of evidence which were e-mail correspondence that some of the witnesses who were the alleged victims of Mr. Ghomeshi’s assault—they had e-mail correspondence which appeared to be quite friendly towards Ghomeshi even afterward the alleged incidents of sexual assault had occurred. These e-mails were not—even though he had those e-mails and he had provided those e-mails to his lawyer—the lawyer did not have any obligation in the criminal proceeding to provide those e-mails to the Crown.  When the trial began Ghomeshi’s lawyer brought forward those e-mails and put those e-mails to the witnesses—basically used those e-mails or correspondence to doubt the credibility of those witnesses.  It is very different in a criminal proceeding (what I want you to understand is that it is different in a criminal proceeding).  In a civil proceeding there are no surprises.  You are entitled to know all of the evidence that is against you.  Similarly, the other parties are entitled to know the evidence that you have against them.

How is the discovery process conducted? 1st there is documentary discovery and 2^nd then there are oral examinations that are conducted.  In some cases you can have written examinations. You can also inspect property. If one of the relevant issues relates to property then you are entitled to inspect certain property.  In some cases medical examination of a party may also be part of the discovery process.  Documentary discovery is generally one of the most important aspects of discovery except for the examinations.  You are required to provide all documents and documents includes data and information in a in an electronic format.  What this means is if you have any paper trail / paper copies you are required to produce those; if you have any e-mails; letters; text messages; photographs; videos; audio recordings; etc., all of these are required to be produced.  The word “document” is actually defined in the Rules of Civil Procedure.  You can see it here: “a document includes data and information and in electronic form and in the electronic includes created recorded transmitted or stored in digital form or in other intangible form by electronic magnetic or optical means or by any other means that has capabilities of creation recording transmission or storage, similar to those means, and “electronically” has a corresponding meaning”.  It’s a very broad definition of document and it includes all kinds of evidence and you want to make sure that all of those kinds of evidence are produced.  With respect to electronic evidence, I want you to keep in mind the obligation to produce is the actual electronic copy of the electronic evidence not just a printed copy.  For example, if you have e-mails, the obligation is to provide the e-mail in its electronic format and not just printed and provided to the other side.  Generally speaking, if there are no issues with respect to how the data is stored and how it is created, then most counsel or most parties are Ok to receive the content of the e-mail in a printed form. 

Oral examination is an examination of a party under oath. It is recorded and transcribed and it is used at trial.  The oral examination does not happen in court. It happens outside of court. There are private companies which are called court reporters. They have these facilities with which you book. They have rooms and a court reporter. You swear an oath and your examination is recorded while the other party asks you questions or their lawyer asks your questions.  Similarly, you can ask them questions.  It is all scheduled before hand and then the examination is conducted.  All of this examination (because it is under oath)—the evidence that you provide at all examinations for discovery is used and can be used at trial.  This evidence is as good as evidence given at trial. There’s a significant importance to the oral examinations for discovery.  

Some of the procedural aspects of discovery that I want you to understand, obviously the most important part is Rules of Civil Procedure which provide specific Rules with respect to the conduct of discovery.  These Rules are 29.1.01 to 33.08. I will encourage you if you’re going towards the discovery process, to review these Rules very carefully.  Each Rule has significant importance and I will try to cover specific Rules in ongoing lectures.  I’m not going through these Rules in this lecture because it will be a very long lecture.  It will be cumbersome to cover all aspects of it.  We will cover specific Rules later on in further lectures. Just so that you understand broadly the Rules—the way the Rules define the discovery process is that once the pleadings are closed—meaning that every party has filed their reply and defense and statement of claim and what not—then within 60 days parties have to agree to a discovery plan.  Discovery plan is generally you agree to certain dates—when will we exchange documents, when will we conduct examinations for discovery, what dates if there are potential motions for undertakings and refusals, and whatnot that arise from an examination from discovery, what are the dates for that.  A discovery plan is a plan agreed upon between parties.  It could be very brief, it could be very elaborate. It outlines some of the dates when certain steps for discovery need to take place. Once the pleadings are closed you also have an obligation to prepare affidavit of documents and serve it on the other side. Affidavit of Documents are essentially your affidavit that states that I have gone through all my records and everything and I believe these are all the documents that I believe are relevant to the issues in this action and I’m giving these to you. You receive the Affidavit of Documents from the other side.  That is the documentary disclosure that is conducted through affidavit of documents. Then once you have the affidavit of documents, you have oral examination scheduled where you examine the other side and they examine you.

Value of Discovery: Discovery is one of the most important steps before trial.  I think it is important to understand the value of discovery and some of the things that discovery can allow you to do. 1. It enables the parties to assess the strengths and weaknesses of their case and this point is important. I can tell you from my experience, when we have conducted examinations for discovery at the end of examination, the lawyers who are reviewing the case objectively for their client and reviewing the case objectively for the other side—they have a very good sense of the merits of the case in terms of the ability to succeed based on the evidence that is before them. After the examination for discovery is completed, generally lawyers have a very good sense and they can advise their clients, not in all cases, but generally speaking, what are the strengths and weaknesses of that case. And once you are clear about the strengths and weaknesses of your case then it helps you to narrow down the issues for trial.  Once again let’s say you have thought about 5 different issues when you filed your pleadings and you thought all of those issues were important. Once you have conducted examination for discovery you may realize that not all of the issues are important only 2 issues are important and you can actually narrow down the issues. You can focus on those issues at trial. Examinations for discovery and discovery process also helps parties reach a settlement because now all the evidence is on the table, you have seen all the documentary evidence, you have seen all the stuff that the other side has in support of their case against your case/ in favor of your case—they have seen yours. You have examined the other side, they have examined you.  There’s not much left other than the actual trial where you allow the judge to determine who’s right and who’s wrong but prior to that if you would like to reach a settlement you have a very good sense of the strengths of your case.  It then allows parties to be reasonable and agree to a settlement.  It also makes the trial process more efficient and fair because now you have narrowed down the evidence; you’ve narrowed down the issues.  You have a clear sense of what the evidence is going to be at trial. It makes the process a lot faster, more efficient and fair.

In conclusion you want to keep in mind that discovery process is actually one of the most important process before trial. You want to carefully review all of the rules that apply in discovery process and you thoroughly prepare for the examination, why? because you want to keep in mind that over 90 percent of cases in Ontario civil cases actually do not go to trial. They settle prior to trial. If you have conducted an effective examination for discovery and you have shown the other side through your examinations and documents that you have a stronger case then your ability to get a better settlement is much higher.

Thank you for watching. I will try to cover different aspects of the discovery process separately in the following lectures. If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture.