Examination for Discovery in Ontario Personal Injury Lawsuits

Examination for discovery is usually the first time the injured person is questioned directly by the defence lawyer in an Ontario personal injury lawsuit.

The answers are provided under oath A court reporter records the evidence. A transcript can be ordered afterward. The answers can affect how the insurance company will assess the value of the lawsuit, what documents are requested, whether expert reports are needed, how mediation unfolds, and how the case is prepared if it does not settle.

In most personal injury cases, discovery happens after the pleadings and document exchange, and before mediation. By then, the defence has medical records, productions, pleadings, and enough background to start testing the claim. The insurance company wants to know more than what the records say. It wants to see how the plaintiff answers questions, whether the evidence is consistent, and whether the plaintiff will likely be a good witness later.

Discovery is also one of the stages where an Ontario personal injury lawyer can materially affect the direction of the case. The lawyer prepares the client, reviews the medical and factual history, anticipates defence themes, handles improper questions, manages undertakings, and helps protect the client’s credibility before mediation, settlement discussions, or trial.

Ontario’s Rules of Civil Procedure address examination for discovery under Rule 31. The Rules allow oral discovery and discovery by written questions and answers, however oral discovery is presumed in personal injury lawsuits.

How discoveries usually happen now

Before COVID, discoveries were held in boardrooms at a court reporting office. In Ontario personal injury cases now, they are typically completed on Zoom or another videoconference platform.

That makes the day more convenient, however, the evidence is still formal. The plaintiff remains under oath and the court reporter is still recording the audio evidence.

The fact that the recording is only completed by audio means that nods and head shakes are not recorded. “Uh-huh” or “mm-hmm” can create ambiguity. If the answer is yes, say “yes.” If the answer is no, say “no.” If the answer is “I don’t know,” say that. If the answer is “I don’t remember,” say that.

The plaintiff also has to allow the question finish before answering. This can feel awkward. People naturally interrupt when they know where a question is going. At discovery, overlapping speech makes the transcript messy. Defence counsel asks the question. The plaintiff waits until the question is fully finished and then answer.

Discovery is not a chance to argue the case

Discovery is not trial. There is no judge in the room deciding who wins. It is also not usually a good idea for the plaintiff to try to persuade the defence lawyer with long speeches. The defence lawyer asks questions. The plaintiff is supposed to simply answer the questions. The lawyer for the plaintiff deals with any potential objections or improper questions.

That does not mean the plaintiff should be cold or robotic. In a personal injury case, how the plaintiff presents can affect how the insurer sees the file. A plaintiff who is honest, careful, respectful, and likeable will be in a better position than a plaintiff who argues, exaggerates, volunteers too much, or treats every question as an attack.

This is especially true in cases that could be tried by a jury. Jurors tend to give the benefit of the doubt to people who they like and believe If the case reaches trial, the plaintiff is judged by people who know nothing about them. Discovery provides the insurance company with an early look at how the plaintiff might come across to strangers.

What defence counsel is usually testing

In most personal injury discoveries, the defence could be exploring one or more of a few major themes: how the incident happened, ifthe injuries were caused by the incident, whether the plaintiff had prior symptoms, whether the medical records support the claim, whether the income loss is proven, whether the plaintiff’s daily activities match the claimed limitations, and whether the plaintiff seems believable.

There will usually be questions about the accident itself, the first symptoms, treatment, medications, prior injuries, family doctor records, specialist visits, mental health treatment, work history, income loss, return-to-work attempts, driving, childcare, housework, travel, hobbies, social media, and what the plaintiff can and cannot do now.

The defence is ask questions to better be able to defend and value the case.

A car accident discovery may involve speed, traffic signals, lane position, weather, seatbelt use, airbags, vehicle damage, EMS attendance, and symptoms at the scene.

A fall case may involve the surface, lighting, footwear, weather, photographs, warning signs, witnesses, and what the plaintiff saw before falling. A serious injury case may spend far more time on function, work capacity, future care, home supports, and prognosis.

How plaintiffs should answer

The best answers are usually short and accurate.

Listen to the question. Wait until the question is finished. Answer the question asked and then do not continue talking.

That sounds simple, but it is often the hardest part of discovery. People want to explain. They want to correct every unfair implication. They want to make sure that the defence lawyer understands the whole story. Often people will fill silence because silence feels uncomfortable.

However, discovery is not the place to volunteer extra information. If the defence lawyer asks where treatment took place, answer that. It is not necessary to start explaining every frustration with the insurer, every appointment, every family impact, and every detail of the last three years unless the question calls for it.

There will also likely be questions that the plaintiff cannot answer. That is normal. People do not remember every date, appointment, medication change, distance, name, document, or conversation. Guessing is worse than saying “I don’t know” or “I don’t remember.”

A careful answer is better than a confident guess.

Preparing for discovery

A proper discovery preparation meeting is not about scripting evidence. The lawyer is not permitted to "coach" a witness into providing false or rehearsed answers. Preparation is about understanding the process, reviewing the important facts, identifying the areas defence counsel will likely ask about, and avoiding preventable mistakes. The preparation will allow the Plaintiff to think about what their answers are to questions which may not be questions they have thought about ebfore.

Preparation may cover the accident, injuries, treatment timeline, prior medical history, medications, work history, income loss, daily function, family impact, social media, surveillance risk, and the documents produced in the lawsuit.

If the defence is likely to argue that the plaintiff had similar symptoms before the accident, it could be important to discuss those issues during preparation. If the defence will focus on treatment gaps, prior medical records, social media, surveillance, return-to-work efforts, or inconsistent statements, the client should not be hearing those themes for the first time while under oath.

For Zoom discoveries, there are also practical points. Parties should be in a quiet place by themselves. They should dress appropriately. They should not look at notes unless the lawyers have discussed whether that is proper. They should treat the day like formal evidence, asthat is what it is.

Prior medical history

Prior medical history is one of the areas plaintiffs often find frustrating. A person may feel that an old back complaint, a family doctor visit from years earlier, or past anxiety treatment has nothing to do with the claim. Sometimes the defence pushes too far. But prior medical history is usually explored because causation is a potential issue in personal injury litigation.

The defence wants to know whether the current symptoms were caused by the incident, existed before the incident, were made worse by the incident, or would have developed even if the incident had never happened.

A prior condition does not destroy a claim. Many valid injury claims involve the aggravation of a pre-existing condition. A person can be vulnerable before an accident and still suffer a significant new loss because of it.

The risk usually comes from denying or minimizing the prior history. Medical records often reveal it anyway. If the records show earlier symptoms and the plaintiff denied them at discovery, the defence now has a credibility point that may be more damaging than the prior symptoms themselves.

Treatment gaps and medical records

The defence may ask when treatment started, how often the plaintiff attended, why treatment stopped, whether treatment helped, whether medication was taken, whether referrals were followed, and whether appointments were missed.

The defence argument is usually simple: if the injury was serious, why was there a gap?

There may be a good explanation. Treatment may have been too expensive. Funding may have run out. The plaintiff may have had transportation problems. They may have returned to work and struggled to attend appointments. They may have been caring for children. They may have been told there was nothing more to offer. They may have stopped because treatment was not helping.

Work, income loss, and daily life

If income loss is part of the claim, discovery will spend time on work.

The defence may ask about job duties, earnings, attendance, performance, promotions, missed time before the accident, return-to-work attempts, modified duties, job applications, retraining, side work, business income, and why the plaintiff says they cannot work as before.

Tax returns, T4s, paystubs, ROEs, employment files, employer letters, disability records, business records, and benefit records can all become relevant.

The defence will explore inconsistencies. If the plaintiff says they cannot work, but records show physical activity, business activity, travel, or social media posts that appear inconsistent, those issues will likely be asked out by the defence counsel.

The same is true for daily activities. Defence counsel could ask about groceries, cleaning, laundry, driving, walking, stairs, exercise, childcare, hobbies, vacations, family events, yard work, and home repairs. These questions are usually about function and credibility.

The answer is not to pretend life stopped. Most injured people still do some things. The details are what count. How often? For how long? With what pain? With what help? What happens afterward? Can the person do it reliably, or only occasionally?

A person who carries groceries once is not necessarily able to return to physical work full time. A person who attends a family event is not necessarily recovered. A person who has a better day is not symptom-free.

Social media and surveillance

Social media is part of modern personal injury litigation. Public posts, photos, trips, gym activity, work activity, hobbies, family events, and comments can all be reviewed. A single smiling photo does not prove recovery, but it can be used unfairly if the plaintiff gave overly absolute discovery answers.

Surveillance can create the same issue. If a plaintiff says they cannot lift anything and video appears to show them lifting something, the defence will use it. Sometimes the video does not tell the whole story. It may show a short activity but not the pain afterward, the help received, the rest needed later, or the fact that the person could not repeat the activity reliably.

Undertakings after discovery

The discovery often continues after the questioning ends. An undertaking is a promise to provide further information or documents after discovery. In a personal injury case, undertakings often involve missing medical records, employment documents, income records, tax returns, benefit files, treatment notes, OHIP summaries, collateral benefit records, photographs, or expense details.

Refusals and improper questions

The plaintiff’s lawyer may object if a question is improper, legally irrelevant, privileged, abusive, unfair, or too broad. The lawyer may refuse the question on the record. Some refusals are resolved later between the lawyers. Others may require a court decision.

At the same time, many questions that feel intrusive are still technically legally relevant in a personal injury lawsuit. Prior medical history, treatment, employment, income, daily activities, function, and earlier symptoms are usually fair areas of questioning.

Car accident discoveries

The defence may ask questions aimed at threshold and deductible issues. It may explore whether the injury is permanent, whether it seriously affects important functions, whether symptoms improved, whether the plaintiff returned to work, and whether the medical records support the level of impairment being claimed.

Consistency is important. Statements made to treatment providers, insurers, assessors, employers, and defence counsel can all be compared.

For more information about motor vehicle claims, see our Ontario car accident lawyers page.

Serious injury discoveries

Serious injury discoveries are usually more detailed. A claim involving brain injury, spinal injury, amputation, serious fracture, chronic pain, psychological injury, catastrophic injuries, major income loss, or future care needs may require careful evidence about work capacity, daily function, medication, home supports, family impact, and long-term prognosis.

The defence could ask small questions because the answers affect damages. How long can the plaintiff sit? How far can they walk? Can they drive? Can they manage stairs? Can they cook? Can they clean? Can they care for children? Can they manage finances? Can they remember appointments? Can they sleep? Can they sustain activity over a full day?

Those answers help shape the future care claim, income loss claim, housekeeping claim, and pain and suffering claim.

How discovery affects mediation and settlement

Discovery often enables settlement discussions since the case becomes better undersood. After discovery, the insurer has more than records. It has heard the plaintiff answer questions. It has assessed credibility. It has identified missing documents. It has compared the plaintiff’s evidence to the medical record.

That is why mediation usually happens after discovery. A strong discovery increases pressure on the insurance company. A poor discovery can make the defence more confident. Sometimes discovery shows that expert reports are needed before mediation. Sometimes it shows that the case is ready for settlement discussions.

For more detail, see our article on mediation in Ontario personal injury cases.

Before discovery, both sides are working from an incomplete record. After discovery, the plaintiff knows more about the defence position, and the insurer knows more about the plaintiff’s evidence. For more detail on settlement strategy, see our article on offers to settle in Ontario personal injury claims.

What happens after discovery?

After discovery, the parties deal with undertakings. Documents are gathered. Answers are provided. Refusals are resolved or argued. The lawyers reassess the evidence. The insurer updates its view of the case.

The next major step is often mediation. If the case does not settle, the parties may obtain expert reports, attend pre-trial, exchange further offers, and prepare for trial.

Discovery sits in the middle of the lawsuit. It is not the start and it is not the finish. But it often shapes the rest of the case.

For a broader of how Ontario lawsuits progress, see our article on how personal injury lawsuits work in Ontario.

Final thoughts

The discovery is often the first time the insurer (through their lawyers) hears from the injured person. The best discovery evidence is usually careful, honest, and restrained. Plaintiffs do not need to know every answer. They do not need to argue the case. They do need to listen to the question, answer verbally, avoid guessing, and be accurate about their medical history, work history, treatment, and daily life.

A well-prepared discovery helps progress the case toward mediation or settlement. A poorly handled discovery can give the defence more confidence. That is why preparation can change how the rest of the lawsuit unfolds.

About the author

Lane Foster is an Ontario personal injury lawyer and the founder of Foster Injury Law. He represents injured people in serious personal injury and car accident lawsuits across Ontario, including cases involving discovery, mediation, settlement negotiations, and trial preparation.