Discovery — Sharing information with the other party
Examination for discovery
To gather information from the other party, you have the option of holding a meeting where you ask them questions about your case. This is called an examination for discovery. It's another tool you can use to learn about the other party's case before the trial. When you've finished an examination for discovery, you might want to request more documents.
Examinations for discovery are part of the court process. But they don't take place in a courtroom, and no judges or court officials are present. A court reporter, paid for by the parties, records each question and its answer, and then provides a transcript (a written record) of the examination. The party answering questions must swear or affirm that they'll tell the truth. The transcript of the examination for discovery, or parts of it, may be used at trial.
Examinations for discovery are limited to five hours for each party conducting the examination, unless the court orders (or both parties agree to) more.
Tip: Rule 9-2 sets out the procedure for examinations for discovery.
The examination takes place after the Notice of Family Claim and Response are filed but before a trial. Usually you wait until after you and the other party have exchanged your Lists of Documents so you can ask questions about them.
Confirm when the other party is available (and their lawyer, if they have one). Find out when you can book a court reporter. When you find a date that works for everyone involved, you must serve the Appointment to Examine for Discovery (Form F21) on the other party at least seven days before the date of the examination.
Find a court reporter
There are many court reporters and most of them will provide a boardroom that you can use for your discovery. Make sure you book the court reporter as soon as possible as they're very busy and their boardrooms are often booked up. You can find court reporting services listed in the phone book or online.
When you examine a person for discovery, you have to pay them a witness fee. Schedule 3 of Appendix C to the Rules of Court sets out the fees for witnesses. Make sure that you know how much it'll cost you to examine the other party before you go ahead with the discovery. If they live out of town, you'll have to pay their travel expenses, a per-day rate for their meals, and for their hotel if they have to stay overnight. You'll also have to pay for the court reporter.
Questions at an examination for discovery can be about anything related to your case. You can also bring listed documents (either yours or theirs) to the discovery and ask questions about these documents. It's a good idea to prepare a script of your questions ahead of time so you don't forget any.
You normally have only one opportunity to conduct an examination for discovery. You have a maximum of five hours, so you need to make good use of the time. This may be a good time to consult a lawyer. A lawyer can help you with the types of questions you can ask.
A lawyer can also help you if you're the one being questioned. They could give you advice about what you might be asked, and what to do if you don't know the answer, or if you think the answer is privileged. (Be prepared to be questioned by the other party's lawyer, if they have one.)
Typically, all discoveries begin by asking the person being examined to state their name, address, and occupation. You then ask the questions you've prepared.
The person being examined must answer any question within their knowledge (or that's possible for them to find out) that relates to the matter in question, but that isn't privileged. If the person being examined can't answer a question right away, you can ask them to send you the answer by letter. You can also ask the person for the names and addresses of other people who might have information relevant to the proceeding.
The party being examined may refuse to answer a question. This is called an objection. If the one party objects and the other party doesn't agree, you have to go to court to get a judge to decide if the question should be answered.
When you've examined the other party and paid the court reporter and transcript fees, the court reporter will provide you with an original transcript and as many copies (electronic and/or paper) as you order. If you decide to use all or any part of this transcript at trial, you'll need to give the original to the court, so put it in a safe place.
Transcripts are set out in questions and answers, with each question and answer numbered in chronological order. The transcripts also set out any questions that have been left unanswered (where the person either needed to find information or to look at documents). You'll want to keep track of these questions and make sure they're answered later. This is true whether you're the person being examined or the person doing the discovery.