What is a Second Examination for Discovery, and Why Does it Happen?

‘Discovery’ is an important part of the civil lawsuit process in Ontario. During discovery, the two sides of the dispute exchange information about evidence and ask questions of each other via interview.

Discovery happens in a few phases. First, the personal injury lawyer and defence lawyer agree on a discovery plan. This establishes important dates in the discovery process, which documents will be exchanged, when and how the documents will be exchanged, who will be interviewed, and other details. Then, the discovery of documents and examinations for discovery occur. During the discovery of documents, the lawyers review everything in the other side’s Affidavit of Documents. During the examination, the parties interview each other and ask pertinent questions about the case.

The discovery phase of the civil lawsuit process is usually a one-time thing. Sometimes, though, a second examination for discovery is requested by a party, often the defence. In this blog, we’ll look at why the defence might seek a second examination for discovery, why this is fairly common in Ontario, when the motion can be granted, and how the personal injury lawyer can limit exposure, all while looking at the case McLeod v. Leonowicz as an example. Law Times reported on this case on November 29, 2021.

Why Do Defence-Side Counsel Seek Second Examinations for Discovery?

Defence counsel may seek out a second examination for discovery if it believes a plaintiff’s circumstances have substantially or unexpectedly changed. In the case of McLeod v. Leonowicz, defence counsel sought a second examination for discovery after it uncovered surveillance video showing the plaintiff installing and removing roof panels at a motel for more than seven hours. During the original examination for discovery, more than two years earlier, the plaintiff testified that he had not worked since the accident; clearly, the defence argued, a material change to the plaintiff’s circumstances had taken place.

Why Are Motions for Second Examinations for Discovery Common in Ontario?

The Ontario civil justice system has struggled with a massive backlog of cases for many years. Before the 2020 lockdowns necessitated by the COVID-19 pandemic, personal injury cases often took years to resolve; the issue is even more serious since the lockdowns.

Motions for second examinations for discovery are generally submitted when a significant change in the plaintiff’s circumstances has taken place. With cases taking years to resolve, a certain amount of change is inevitable. It is up to defence counsel to decide whether the change that occurs warrants a second examination and up to the judge in the case to decide on the motion.

When are Motions Granted and When are they Not Granted?

The judge considering the motion must first determine whether a substantial or unexpected change in the plaintiff’s circumstances has taken place. If it has, the judge must determine whether it would be unjust for the defence not to have a second discovery.

In its motion in McLeod v. Leonowicz, the defence argued that the plaintiff’s ability to work, as shown on the uncovered surveillance footage, constituted a substantial change in circumstances. It also argued that the plaintiff should correct his answers from the previous examination.

The Ontario Superior Court of Justice declined to agree with either argument. Regarding the change in circumstances, the deciding judge wrote: “I do not think the defence can legitimately claim that because of the surveillance, it has now realized the plaintiff was once injured but must have improved since he gave his prior testimony. The fact that additional evidence has been generated, namely surveillance, is not a change in circumstances.”

Regarding the need for the plaintiff to correct his answers, the judge wrote: “I do not think it is proper to order the plaintiff to change his answers. I fully appreciate the defence position that the answers are not credible. However, the issue is one on which I should offer no conclusion. The result might be different if the questions were on purely objective matters, or if the answers were not primarily an issue of credibility.”

What Should a Personal Injury Lawyer do if a Motion is Granted?

Not every motion for a second examination for discovery will end as favourably for the plaintiff as the motion in McLeod v. Leonowicz. Because personal injury cases take so long, it is not uncommon for a plaintiff’s circumstances to substantially change between the time the lawsuit is initiated and the moment the motion is submitted.

For a personal injury lawyer, a successful motion for a second examination for discovery puts an otherwise successful case at risk. To reduce the fallout, they should insist that the second examination be limited to the specific issues that underwent the substantial change. The defence counsel should not be permitted to ask about unrelated details of the case.

Contact Will Davidson LLP today

If you have questions about the examination for discovery or any other phase of the civil legal process in Ontario, or if you’ve been injured in an accident, contact a personal injury lawyer at Will Davidson LLP today to schedule a free, no-obligation consultation. Our team will be happy to listen to your story and assess the validity of your claim.

Image: Unsplash

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