Client Guide
If your case is headed to discovery, this is the part clients worry about most. It is also the part that preparation makes easiest. Here is what actually happens, what you will be asked, and how to give evidence well.
Reviewed August 2026An examination for discovery is a question and answer session held under oath or affirmation, before trial, outside a courtroom. A lawyer for the opposing party asks you questions about the facts of the case. A court reporter records everything and produces a transcript.
There is no judge. Nobody decides anything that day. Discovery exists so that each side learns the other side's evidence before trial, which narrows the issues in dispute and lets both sides evaluate the case realistically. A very large share of civil cases settle after discovery, which is not a coincidence.
You will be examined, and so will the other side. If you are suing a hospital, a driver, an occupier, or an insurer, your lawyer gets to examine their representative too.
Rules of Civil Procedure, RRO 1990, Reg 194, Rule 31.Changes coming in 2026
Ontario's Civil Rules Review has recommended significant changes to how examinations work, including shorter time limits, tighter limits on objections, the abolition of taking questions "under advisement", and remote attendance as the default. The Working Group delivered its final report and an implementation committee has been struck, with phased rollout anticipated from mid-2026.
None of this is in force yet. Rule 31 continues to govern examinations today, and this page describes the current process. We update it as the reforms are made.
Discovery is a middle stage, not an early one. By the time you are examined, the issues have already been defined on paper.
The statement of claim, the statement of defence, and any reply. These set out each side's position and fix the boundaries of what can be asked about.
Each party serves an affidavit of documents listing every relevant document in its possession, control, or power, and produces the ones that are not privileged.
The parties agree on scope, timing, and the format of productions. Proportionality governs: the cost and effort of discovery must be reasonable relative to what is at stake.
Each side is examined. This is the day this guide is about.
Answers and documents promised during the examination are gathered and delivered afterward. Unresolved refusals may go before the court.
Mediation is mandatory in Toronto, Ottawa, and Essex County, and common everywhere else. Most cases resolve at or before the pre-trial conference.
Reached by a small minority of cases, and your discovery transcript comes with you. See preparing for trial.
Examinations are held in a boardroom at a court reporting office or a law office, or by videoconference. Video has become routine since 2020 and is often the default in straightforward cases.
In the room: you, your lawyer, the lawyer examining you, and a court reporter. Where an insurer is defending, an adjuster or a representative may attend. Other parties' lawyers attend if there are several defendants. Members of the public do not attend, and neither do family members, unless everyone agrees or you need a support person for accommodation reasons.
There is no judge, no jury, no witness box, and no dramatic cross-examination. The tone is usually businesslike. Business attire is appropriate but a suit is not required.
In an ordinary action, no party may exceed seven hours of oral examination in total, regardless of how many people are being examined. That limit can be extended on consent or by leave of the court, and in complex cases it regularly is.
In a simplified procedure action, which is mandatory for most claims of $200,000 or less, the total is three hours per party. That limit is stricter than it looks: the court has held it has no discretion to extend it, unlike the seven hour limit. If your case is under simplified procedure, expect a focused half day.
Rules 31.05.1(1) and 76.04(2).Most examinations in a personal injury or malpractice case run somewhere between two and six hours, with breaks. You are entitled to a break whenever you need one, and breaks do not count against the clock.
Before you are examined, your lawyer will have served an affidavit of documents. Schedule A lists the relevant documents you are producing, Schedule B lists the ones you are withholding on the basis of privilege, and Schedule C lists relevant documents you once had but no longer do.
Two things follow from this. First, opposing counsel will have read your documents closely, sometimes more closely than you have, and will ask you about them. Second, your obligation to disclose does not stop when the affidavit is served. If a relevant document surfaces later, it has to be produced.
The category is broader than most people expect. Emails, text messages, photographs, appointment records, employment and income records, and social media content can all be relevant. Never delete anything once litigation is contemplated.
Not every question gets answered on the spot. Three things can happen instead.
Your lawyer promises to obtain and deliver an answer or a document after the examination. An undertaking is a binding professional obligation, so it gets answered.
Your lawyer takes the question away to consider whether it should be answered, and gives a position later.
Your lawyer declines the question, usually because it is irrelevant to the pleaded issues, privileged, or improper. If the parties cannot resolve a refusal, the examining party can bring a motion asking the court to compel an answer.
You do not have to decide any of this yourself. If your lawyer says "don't answer that", stop and wait. That is your lawyer doing their job, and it is one of the reasons they are sitting beside you.
The transcript is evidence. At trial, the opposing party can read portions of it into the record as admissions, and can use it to challenge your credibility if your trial testimony differs from what you said at discovery. This is the single most important reason to answer carefully rather than quickly.
What the transcript cannot be used for is anything outside your case. The deemed undertaking rule prohibits parties from using evidence obtained through discovery for any purpose other than the proceeding in which it was obtained. Your medical history, your income records, and your answers do not become public and do not go anywhere else.
Rules 30.1 and 31.11.Your lawyer will meet with you before the examination to prepare, review your documents, and walk through the likely subject areas. That meeting matters more than anything on this page. These ten rules are what carries you through the day itself.
Everything else is secondary. A truthful answer that hurts is survivable. An answer that is shown to be false is not.
Do not begin composing your answer while counsel is still speaking. Hear the whole question, then pause, then answer.
If the question is answerable with yes or no, answer yes or no. Volunteering extra information is the most common way witnesses open subject areas that would otherwise never have come up.
"I don't know" and "I don't remember" are complete, proper answers. Guessing produces an estimate that gets treated as evidence, and that you may later have to explain away.
Be clear about whether you actually remember something, or whether you were told it, read it in a record, or worked it out afterward. Say which.
There is no reward for speed and no penalty for a pause. Silence reads as considered on a transcript. It does not read as evasive.
If a question is confusing, compound, or assumes a fact you disagree with, say so and ask for it to be rephrased. Never answer a question you did not understand.
Opposing counsel is not your audience and cannot be persuaded. Arguing costs you credibility and gives away information. Stay level, even under pressure.
If you realize an earlier answer was wrong or incomplete, say so as soon as you notice. Corrections made at discovery are unremarkable. Corrections that first appear at trial are not.
If you are tired, in pain, or losing focus, say so. You can also ask to speak with your lawyer, though not in the middle of answering a pending question.
Being tricked. Discovery is not a cross-examination designed to trap you. Counsel is gathering information. Careful, honest answers are not vulnerable to clever questioning.
Forgetting something. Nobody expects perfect recall of events from years ago. Saying you do not remember is normal and expected.
Saying something that ruins the case. Cases are rarely lost on a single answer. They are damaged by answers that turn out to be untrue, which is a different problem with a simple solution.
Being alone. Your lawyer sits with you throughout, objects where appropriate, and can stop the examination if it becomes improper.
You will usually receive the transcript within a few weeks. Read it. If there are errors of substance, tell your lawyer so the answer can be corrected properly.
Undertakings are then answered, outstanding refusals are resolved or brought before the court, and the case moves toward mediation and pre-trial. In most files, discovery is the point where both sides finally have enough information to talk about settlement seriously.
The procedure above is the same in every civil case. What you will be asked about is not. Each guide below covers the subject areas, records, and lines of questioning specific to that kind of claim.
No. An examination for discovery takes place outside the courtroom and no judicial officer attends. Nothing is decided that day.
Almost always yes, but not always. Questions that are irrelevant to the issues raised in the pleadings, or that seek privileged information, may be refused by your lawyer. You do not make that call yourself, and you should not try to. Wait for your lawyer.
Discuss this with your lawyer first. Anything you bring and use to refresh your memory can generally be inspected by opposing counsel, so notes prepared for the day can become producible.
Tell your lawyer promptly. Answers can be corrected in writing after the examination. Correcting an error early is far better than having it surface at trial.
Under the current rules the record is the court reporter's transcript. Video recording happens by agreement or court order, and remote examinations are typically conducted over videoconference without being recorded. This is one of the areas the 2026 reforms may change.
Meet with your lawyer, review your own documents and records, and re-read your statement of claim. Do not memorize anything. The goal is to refresh your memory of the events, not to rehearse answers.
Davidson Cahill Morrison LLP
Our lawyers prepare clients for discovery in medical malpractice, personal injury, disability, insurance, and municipal matters across Ontario. If you have questions about your own examination, we are glad to answer them.
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