TESTIMONY & BEING EXAMINED IN A DISCOVERY
At the outset, it is necessary to note that in Ontario there is no discovery in applications. In Ontario discoveries occur in actions; a two-part process, beginning with documentary discovery under the Rules of Civil Procedure (Rules) and then oral discovery (examinations). The purpose of discovery is sixfold, enabling the party to:
- Know the case it has to meet;
- Procure admissions so as to dispense with formal proof;
- Procure admissions that may hurt an opponent’s case;
- Narrow down issues;
- Facilitate settlement, pre-trial procedure and trials; and
- Avoid the unforeseen at the trial.
The counsel, in such circumstances, usually explains to the client:
- the necessity of making full disclosure of all documents relating to any matter in issue; and
- the duty to answer to the best of his or her knowledge, information, and belief, any proper question relating to any issue in the action.
On all parties to an action, there are two separate but related disclosure obligations.
- A party is required to disclose the existence of all documents, relevant to the action; and
- The party is required to furnish, for inspection by all adverse parties, all relevant documents for which the party does not claim privilege. Here, privilege is the right to withhold from adverse parties the production and inspection of documents relevant to the issues in a legal proceeding.
This production of documents is different from the disclosure obligation, which is discharged by the swearing and serving of an affidavit of documents. The obligation itself reads as follows:
“Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.”
While that relating to the production obligation states:
“Every document relating to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document.”
Besides this, a party is required to produce any insurance policy under which an insurer may be liable to satisfy all or a part of a judgment in the action. The insurance policy in itself is inadmissible evidence and only addresses the practical reality that prior to trial, it is useful for the parties to know what amount of money is available for settlement or judgment.
The party can also be ordered to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation, or a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.
Definitions of Documents and Power
Partly consequent to the broad definition of the term document, the discovery obligation is slightly abstract. A document is defined as among other things “a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account and data and information in electronic form.” It means that information stored on a computer disk is also a document, and so is the hard copy printout therefrom and E-mail communications as well.
Power means that a document would be considered to be “in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled”. Even when the party is not personally aware of their existence, as for example, documents obtained by an investigator employed by the lawyer. Such documents are constructively in the possession of the party, because they are held by both the investigator and the lawyer, who are agents of the party and thus under the discovery obligation.
Affidavit of Documents
After pleadings are over, all parties to an action have to serve within ten days on every other party, an affidavit of documents disclosing to the full extent of the party’s knowledge, information and belief regarding all documents. The party’s lawyer has to certify on the affidavit that the deponent is aware of the implications of the matter, though the lawyer is not confirming the accuracy or completeness of the documents.
Knowledge, Information and Belief
A significant feature of an affidavit is that the deponent writes that the statement is true “to the best of his or her knowledge, information and belief”. Likewise, during a cross-examination (of the affidavit) the person examined has to say that the answers are true “to the best of his or her knowledge, information and belief”. Now, “knowledge” is obtained from the witness’s own personal observation or participation. While “information” is acquired when a witness has not observed or participated in an event or occurrence personally, but has been informed of it by someone else. However, “belief” is a matter of inference, awareness of a fact from either personal knowledge or information from others. This obligation allows the witness not to object to answering questions on the ground that the answer would be hearsay.
This commitment to provide all information is due to the fact that, in Ontario, as a general rule one is entitled to examine for discovery ONLY parties to the lawsuit, and thus leads to certain consequences:
- A party has to make positive efforts to inform him- or herself, from all those persons to whom he or she has access, as to the facts and circumstances in the action. If the party has obtained information from other persons likely to be potential witnesses at trial, the party is required to disclose all such information.
- If a party is unable to answer questions on examination for discovery, he or she is required to get it from others, and then to provide the information to the examining party.
In Ontario, therefore, complete pre-trial discovery is achieved by imposing on the one person who is examined the obligation to obtain and disclose relevant information from others (usually in the form of undertakings).
Going through a discovery should not be without your lawyer. Answering questions that are not relevant to the lawsuit can be detrimental and costly. Having a strong lawyer with a keen sense of the tactics involved and a sharp eye, such as the lawyers at Levy Zavet PC, will ensure that you leave the examination with peace of mind.