April 24, 2022

By Brian Babcock

Oral examinations for discovery out of court are a long established means of preventing “trial by ambush” under Ontario’s Rules of Civil Procedure. In most cases, each party is allowed to examine the others once, with time limits that may be extended where appropriate.

Each person examined must correct many mistakes they find in their discovery evidence, a rule which includes a duty to update answers which are no longer true. For example, on discovery, the person might testify “I am not working”. If they later go back to work they are expected to inform the other side.

One of the reasons for this provision is to avoid as much as possible the need for parties to return for second oral examinations. Oral discovery is expensive, and scheduling it can often substantially delay the progress of an action. Second examinations may sometimes be sought for tactical reasons, to create delay or expense or try to pressure a vulnerable party. None of that complies with the spirit of our Rules.

Parties may try to seek a second discovery where the action has been delayed for other reasons, and they know or suspect that the information from the first exam may no longer be current.

McLeod v. Leonowicz is an example of a situation where this might happen, but with a twist. That allows the motion judge considering the request to make some general comments that you need to heed if you are involved in a situation where a second discovery is contemplated.

This action involved a fairly typical motor vehicle accident. The injured Plaintiff on discovery in 2017 testified about efforts to return to work, a common issue. In 2019, the defendants obtained video surveillance that they say contradicts the Plaintiff’s evidence. The defendant sought a second examination to confront the Plaintiff with the video.

This tactic is somewhat unusual, thus the twist. Usually, the defendant’s lawyer shows the Plaintiff the video during cross-examination, hoping for that “Perry Mason moment” when the witness’ credibility dissolves before their own eyes.

Tactically, it is often better to save credibility evidence for that moment at trial. Giving a witness two chances to explain the contradiction risks them improving with practice. However, exposing the credibility gap may lead to a quicker settlement, saving costs.

The request for a second discovery was denied, because:

  • the proposed answers would be mainly about an issue of credibility, which the Defendant could explore at trial. There was no need for this confrontation to occur twice, further delaying the action and increasing cost.
  • Though the Defendants tried to argue that their request was really about the Plaintiff’s duty to correct his earlier answers, the judge was not buying it: “I do not think it is proper to order the Plaintiff to change his answers.”
  • though changed circumstances often are a reason for a second discovery, the judge decided that the fact that the Defendants had obtained video that contradicts the Plaintiff’s early evidence is not what we mean by a ‘change in circumstances’ – it is just a change in the available evidence.

Although it looks like a huge loss for the Defendants, if their true objective was tactical – to drive home the Plaintiff the strength of the Defendants’ case – they may have succeeded. It is cynical thoughts like that which encourage tactical abuse.

Judges in the Northwest Region, including Thunder Bay, take a dim view of tactical abuse. What might be routine in the GTA is not encouraged here. However, perhaps because we see more Toronto lawyers appearing here than in years gone by, tactical abuse does take place. We hope that our local judges continue to discourage behaviour that might fly in Toronto.

At Weilers Law, we believe that justice on the merits, quickly and cost effectively, is best for our clients.  We have always been cost conscious. We have always believed that a quick resolution is often better for our clients than waiting in search of a more perfect truth, which is often elusive. We have always reserved tactics for their proper time and place, and oppose abuse. These are part of the “Proud Traditions” we have built up over 75 years as a firm. If you share these values, and want lawyers who take justice and cost effectiveness seriously on your side, we just might be the lawyers for you.