An interesting method of oral discovery used widely in Canada is a procedure known as “examination for discovery”. I witnessed the examination for discovery in operation in Toronto, Ontario, and had extensive discussions on the subject with court administrators and the judiciary throughout Canada.
Basically, examination for discovery is an oral examination of a party before trial touching the matters in question by any party adverse in interest. Most of the American jurisdictions do have some provision for oral examination for discovery in the form of what are generally called “depositions on oral examination”. The focus of this discovery technique is on examination, not cross-examination, of the opposing party. The examinations enable the examining party to know the case he has to meet, to procure admissions which will dispense with other formal proof at trial and to procure admissions which will destroy his opponent’s case.28 In the Canadian Provinces there is widespread agreement that the examination for discovery makes an important contribution to settlement of litigation.
The Rules of Practice and Procedure of the Supreme Court of Ontario, subject to express statutory provisions, regulate the conduct of examinations for discovery in that Province.29 The rules provide for the institution .of proceedings to be followed by a series of steps designed to narrow and define the issues and generally to prepare a case for trial. They consist of the exchange of pleadings in which admissions of material allegations are made, and of examination for discovery, production of documents, medical examination, inspection of property, cross-examination on an affidavit and examination of a witness on a pending motion. The rules do not provide for a pre-trial conference as in Alberta, British Columbia, Nova Scotia and most American jurisdictions.
The rules provide that a party to an action, whether plaintiff or defendant, or if a corporation is a party, any officer or servant of such corporation, may without order be orally examined before the trial touching the matters in question by any party adverse in interest. The party, officer or servant may be compelled to attend and testify in the same manner, upon the same terms, and subject to the same rules of examination as a witness, except as provided in the rules. The rules provide that a corporation may apply to the court for the examination of an officer or servant in lieu of the officer or servant selected to be examined by the opposing party. Further, after the examination of an officer or servant of a corporation, an opposing party is not at liberty to examine any other officer or servant without an order. Where an infant is a party, any opposing party may examine the next friend or guardian of the infant. There are special provisions for the examination of infants and mentally incompetent persons.
Any witness examined is subject to cross-examination and re-examination. Where any person neglects or refuses to attend for examination, refuses to be sworn or to answer any proper question put to him, proceedings may forthwith be had for attachment. For such refusal or neglect the court may dismiss the action where such person is the plaintiff or an officer or servant of a corporation plaintiff, or may strike out the defence, if any, where such person is a defendant or an officer or servant of a corporation defendant. If, however, a person under examination objects to a question put to him, the question and the objection shall be noted. The validity of the objection shall be decided by the examiner whose decision shall also be noted. Any direction or ruling of the examiner is subject to review upon any motion without an appeal.
The person to be examined or any party to the action shall, if so required by subpoena or notice, produce at the examination, in relation to the matters in issue, all books, papers and documents that he could be required to produce at the trial. Further, where at his examination a person admits that he has in his custody or power any such document, the examiner may direct him to produce it for the inspection of the party examining, and for that purpose allow a reasonable time.
The production of a record of the examination is crucial to its success. The rules provide that the examination, unless otherwise ordered or agreed, shall be taken in shorthand by question and answer. It is not necessary for the depositions to be read over to, or to be signed by, the person examined. The rules further provide that a copy of the depositions, certifies or signed by the examiner, shall be received in evidence saving all just exceptions.
The American deposition is a discovery device similar in principle to the Canadian examination for discovery. Under the Federal Rules of Civil Procedure30 either side, without leave of the court, may, on reasonable notice, examine the other party on oath before an officer authorized to administer oaths, 20 days or more after the action is commenced. A subpoena is required for examination of a witness not being a party to the action, unless he or she consents to be examined. Examination and cross-examination proceed as at the trial. The deposition may be used at the trial as evidence per se and, amongst other things, to contradict or impeach a deponent as a witness.
Discovery by oral deposition in the United States is used in about one case in two. Lawyers generally regard it as useful although lawyers retained on a contingency basis use it more often than others. Among the main advantages claimed are: witnesses are examined when their memories are fresh; the procedure binds the party to a version of the facts at an early stage; testimony is perpetuated in the case of death or indisposition at the trial; it leads to better prepared and conducted trials in cases which are not settled; and it leads to earlier and fairer settlements. It is conversely alleged that: this form of discovery encourages “fishing expeditions”; insistence on discovery at inconvenient places or times may be used as an instrument of harassment; the taking of depositions is expensive in terms of time, money and manpower; and, since depositions are expensive, a rich party may use them to gain a tactical advantage. Research in this area suggests that the deposition in the United States is neither so good nor so bad as claimed.31
Examinations for discovery are similar to the American model with one significant restriction; only parties (or in the case of companies, their servants) may be examined. The exception is Nova Scotia which, in effect, adopted the American procedure in 1972. Since the scope of questions permitted is very wide and the rules of evidence do not normally apply, this restriction does not prevent adequate disclosure of the case, as counsel may examine a party as to facts which he knows only by hearsay from witnesses who will be called at the trial. Canadian lawyers regard it as improper, without good reason, to lead evidence at the trial which has not been disclosed on discovery.
Without exception, Canadians speak in the highest terms of the contribution that the examination for discovery makes in most cases to the settlement of litigation. In Ontario the examination procedure is used in all civil cases. One counsel in Toronto estimated that 80 to 90 per cent of all running-down cases there are settled as a direct result of the examination. At the other extreme, examination for discovery was said to be very ineffective where there are emotionally charged issues, as in proceedings for divorce and ancillary matters.
The Evershed Committee32 in 1953 and the Winn Committee33 in 1968 considered that examination for discovery was unsuitable for introduction into England, partly because it substantially increased the costs of litigation. This objection still seems valid in respect to civil procedure in New South Wales. An examination requires a special room, some means of recording the proceedings, and the presence of the parties and their legal representatives. Most importantly, counsel would have to be fully briefed for the examination and an appropriate fee would have to be paid to solicitors and counsel. General use of the examination for discovery would therefore not be justified unless there were some assurance that the examination would lead to a settlement of most cases. The fusion of the two branches of the profession seems to be the circumstance that makes the procedure relatively inexpensive in Canada. The lack of a split profession allows lawyers (in some cases, junior lawyers) from the office handling the case to conduct the examination. In my submission, the expense of introducing examination for discovery would be disproportionately high when balanced against the results likely to be obtained.
Footnotes
28. Report on Administration of Ontario Courts, Ontario Law Reform Commission, (1973) p. 91.
29. Regulation 545, 1970, under the Judicature Act and the Matrimonial Causes Act, Rules 326-346.
30. See Federal Rules of Civil Procedure, Rules 26-30.
31. Claser, Practical Discovery and the Adversary System, (1968) p. 51ff. The conclusions of this survey are summarized in Justice Report, Going to Law - A Critique of English Civil Procedure, (1974) paras 129-133.
32. Op. cit. note 18, paras 219-221.
33. Op cit. note 19, para. 355.
