Nobody wants to have to go to Court, but sometimes this is necessary to pursue your rights or to defend against a frivolous lawsuit. While our firm makes efforts to resolve cases and reach reasonable settlements, sometimes an early settlement is not possible, and the parties find themselves on opposing sides of litigation. If you are a party to litigation, either as a plaintiff or a defendant, it is helpful to understand the steps that will take place as part of the litigation process.
As described in more detail below, one of the more important and complex steps in litigation is the discovery process. As you can see, our legal system is built on a principle of disclosure; unlike legal dramas on television, there are rarely surprises at trial, as the parties have already disclosed all relevant evidence.
When Discoveries Occur
The discovery process is a usual step in any civil lawsuit in the Ontario Superior Court of Justice. In some cases, the Court can order a summary proceeding to take place, which may mean that the discovery process is modified or skipped altogether. There is no discovery process in the Small Claims Court, which is the forum for claims seeking $35,000 or less.
The discovery process occurs after the exchange of pleadings, (i.e., the statement of claim, statement of defence, and any other pleadings). It can occur either before or after mediation, depending on what the parties agree to.
Documentary Discovery: Affidavits of Documents
There are two main components of the discovery process:
- documentary discovery, and
- oral discovery.
Documentary discovery involves both sides producing an affidavit of documents that contains all relevant documents in that party’s power, possession, or control. This process requires parties to diligently search their records and make appropriate enquiries of others in order to produce any documents that are relevant to any matter at issue in the lawsuit. Relevance is defined by reference to the pleadings that are filed in the lawsuit, including the statement of claim and the statement of defence.
The term “document” is very broad, and includes emails, text and WhatsApp messages, voice recordings and other electronic documents. Full disclosure is required, and therefore a party must produce both documents that will help their case, and also documents that could hurt their position. Non-disclosure of documents can result in a Court Order and could potentially hurt that party’s case.
It is mandatory for all parties to produce their affidavits of documents prior to taking other steps in the discovery process.
Oral Discovery: Examinations for Discovery
The second component of the discovery process is oral discovery, which involves the parties attending examinations for discovery. The lawyer for the plaintiff will have the opportunity to question under oath the defendant (if the defendant is an individual) or a representative of the defendant (if the defendant is a corporation). Similarly, the lawyer for the defendant will have the opportunity to question the plaintiff under oath.
In cases under the Simplified Procedure, which is typically used in claims for $200,000 or less, each party’s examination is limited to three hours. In cases under the ordinary procedure (i.e., in claims for more than $200,000), the limit is seven hours.
The examination takes place in person at a private office, or by video conference if the parties agree. Along with the parties and their lawyers, there will also be a court reporter present to record the questions and answers. Each party can be present for the opposing party’s examination.
Purpose of the Discovery Process
The discovery process is designed so that by the time the parties get to trial, they will know what evidence there will be in support of each side’s case.
While the discovery process is adversarial in nature, it sometimes is a necessary step towards reaching a settlement. At the conclusion of the discovery process, the parties and their lawyers have much more information to help assess the strengths and weaknesses of their case, and better predict the likely outcome at trial.
While it is often preferable to avoid litigation altogether, we can help guide you through the process if you find yourself a party to a lawsuit. If you are an employee that has a potential claim against your employer, we can help you decide how best to pursue that claim.
If you are an employer that is required to defend against litigation brought against you, we can help you both throughout the negotiation process and if necessary, throughout the litigation process. If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.