Examination for Discovery Definition:
A recorded oral examination of the other side to litigation before trial and under oath, but not before a judge, with a view to obtaining admissions or discovering facts.
Examination on Affidavit
A method of taking evidence from the other side to litigation, before trial. Other methods include interrogatories and a demand for delivery of relevant documents.
In an examination for discovery, the other litigant or, in the case of a corporation, an officer of the corporation, is summoned to appear before a Court reporter where he or she is put under oath and under cross-examination, required to answer questions put to it which are relevant to the action. The transcript of an examination for discovery can be used against the deponent if she or he later contradicts portions of the transcript at trial. No judge is present at an examination for discovery but the examination can be adjourned and any dispute in regards to the examination taken to the Court for resolution. The examination is presided over by the lawyer or the side that convened it.
In Carney, Justice Lamont wrote:
"... an examination for discovery is both in substance and in form in the nature of a cross-examination, but limited to the issues raised in the pleadings, and that the object is to enable the litigant parties to ascertain if the plaintiff has a good cause of action or the defendant such a defence as would render further litigation useless; that to effect this purpose the examination may so far as the issues raised in the pleadings are concerned be as searching and thorough as the parties' cross-examination of a witness at the trial could be."
In Minute Muffler, Justice Stenson of the Alberta Court of Appeal, as he then was, wrote:
"The examination for discovery as employed in the courts embraces two main elements: discovery of facts in the hands of an adversary and the obtaining of admissions for use in evidence."
In Forliti, Justice Garson attempted a codification of the general rules pertaining to an examination for discovery, adopting these words:
- "The scope of an examination for discovery extends to any matter relating to a matter in question in the action and is in the nature of a cross-examination. The question need not be focused directly on a matter in question in the action but need only relate to such a matter. Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.
- "On an examination for discovery, questions are limited to relevant issues ... between the party conducting the discovery and the party being examined. In other words, questions may not be put which are relevant only to issues between the party conducting the discovery and another party (not being examined).
- "A witness need not answer questions soliciting an opinion on an examination for discovery. There is an exception to this rule where the party examined is asked questions regarding his or her professional conduct or competence where that conduct and/or competence is in issue in the action. Questions soliciting an opinion must pertain to the area of expertise of the individual being examined. The party being examined need not answer questions pertaining to the conduct of another defendant.
- "Hypothetical questions may properly be put to a witness where the witness has expertise and when the hypothetical question is relevant to some issue in the case, provided the question is not overly broad or vague.
- "Counsel for the party being examined may object to the form of a question on the grounds that it is vague, confusing, unclear, overly broad or misleading. An example of a misleading question is the misstatement of earlier testimony. The proper conduct of counsel in this instance is to state the objection to the form of the question and the reasons for objection. It is not appropriate for counsel to make comments, suggestions, or criticisms. The court will not order a question to be answered if the meaning of the question to be answered is not clear, or if it appears to involve questions of law.... The questions should be set out in concrete form and should not depend for their meaning on previous questions or answers...."
- Carney v. Carney, 6 Sask. L.R. 373, 5 W.W.R. 849, 15 D.L.R. 267 (1913)
- Duhaime, Lloyd, Civil Litigation Law
- Duhaime, Lloyd, Examinations for Discovery – Taming the Beast
- Forliti (Guardian ad litem of) v. Woolley, 2002 BCSC 858, 21 C.P.C. (5th) 246 and at 2002 CarswellBC 1493
- Minute Muffler Installations Ltd. v. Alberta 30 A.R. 447, 23 L.C.R. 128, 23 C.P.C. 52, 16 Alta. L.R. (2d) 35 and at 1981 CarswellAlta 42
- Richards v. Watch Lake Development Co., 9 B.C.L.R. 215, 10 C.P.C. 82 and at 1978 CarswellBC 239
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