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Examination for Discovery

We have now reached the stage where each party will prepare and conduct an examination for discovery of the opposing party. The examinations are taken under oath and the questions and answers are recorded by a shorthand reporter. No judge is present. However, when you are examined by the opposing lawyer, I shall be present to protect your rights and to advise as to whether or not questions should be answered. Your opponent will not be present. Similarly, when I examine your opponent you will not be present but your opponent’s lawyer will attend with him on the examination.

The transcripts are available to both parties and are filed with the court. Portions of the examination of each party can be read in against that party at trial.

Purpose of the Examination

The purpose of the examination is threefold:

(1) to obtain admissions which help us to prove our case;

(2) to obtain admissions which help to destroy the opponent’s case;

(3) to discover the facts upon which the opponent relies as a basis for his case.

Preparation for the Examination

When we meet in my office on the date set out in the accompanying letter, I shall already have prepared for the examination of your opponent. I shall review my preparation with you and shall ask for any suggestions, which you may have. We will then try as best we can to anticipate the questions, which the opposing counsel will ask you on the examination. It is vitally important to be well prepared for this examination and we must allow ample time.

Your Examination

It is very important for you to remember that your examination for discovery is conducted not for your benefit but for the benefit of your opponent. The lawyer for your opponent will do his best to obtain answers from you, which help his case and hurt yours. Therefore, there are a number of simple rules, which you should bear in mind.

1. If I object to a question, do not answer it unless I tell you to do so, even if you disagree with my objection. For tactical reasons, I shall probably not object unless a question is very improper or totally irrelevant. We have nothing to hide and I do not wish to convey the impression that I am trying to protect you during the examination.
2. Listen to the question and answer it.
3. If you do not understand the question, say so.
4. If you do not know the answer or cannot remember, say so. You are not expected to have total recall. Much of the information requested on discovery is provided after discovery and not on the spot. It goes without saying that you should have knowledge of the central points in the case. We shall discuss these when we meet to prepare.
5. Unless you have absolute figures in writing before you, be approximate.
6. Do not rush. Take time to think if you need it.
7. Be concise. Do not ramble. You will not convince the opposing lawyer that you are correct in this case. You will do more to persuade him by being a candid convincing witness.
8. Do not argue with the opposing counsel.

The foregoing is, of necessity, quite general. If you have any questions about the general procedure or about the particular facts of your case, please make a note of them and make sure that you raise them with me during our preparatory meeting. We shall discuss all these matters in more detail when we meet to prepare for the examinations.

The object of mediation is to avoid having a trial.

Studies have found that parties adhere to agreements reached by mutual settlement more often than to terms dictated by a judge. In order to facilitate this goal, mediation is encouraged at all times and, in fact, is required now for most cases in the Toronto Superior Court.

Mediation, whether voluntary or mandatory, is a discussion between the parties with their lawyers and a mediator. Over the course of a mediation, various groupings for discussion can occur as needed; e.g.: the mediator might meet with only the lawyers initially to see if there are any technical legal problems or procedural concerns. You are invited to be candid and encouraged to express your concerns, although in a calm, non-threatening manner. The mediator has no power to order anything to happen. ONLY if the parties all agree can there be a settlement.

The mediators we use are trained not only in mediation techniques but in law. They are usually retired judges or lawyers who have chosen to become mediators. Mediators are neutral persons; they do not represent anyone who is a party. Their goal is to help the parties achieve a reasonable, fair settlement based on the entitlements at law.

There is no recording or transcript made of the mediation, although individual lawyers do take notes for future reference. The mediator cannot be called as a witness. The statements made in mediation are not binding; for example, if an insurance company can take the position in mediation that they are liable to pay and discuss only the amount of the claim. If no settlement is reached, the company can continue to defend itself on the basis that liability to pay has not been proven.

While it is hoped that a full settlement can be reached at mediation, lesser objectives also signify success. The parties can agree on what needs to be done in order to increase the likelihood of a settlement; for example, a particular medical assessment or the provision of further financial documentation. A second mediation session can be held thereafter to discuss settlement having received the report or information. Finally, if settlement is not possible, the parties can agree on a schedule and assignment of tasks to move the matter forward toward a trial.

Prior to mediation, we prepare and submit a brief including the facts, argument and documents for the other parties and the mediator. In turn, we receive the same package from each of the other parties. The mediator is, therefore familiar with the basic situation and opposing views at the outset of the mediation session itself. Similarly, the parties understand the specific and most important claims being advanced by each other. It is, therefore, important that you keep us advised of any new developments in your medical care or financial situation.

This booklet includes:

• Union Vs. Non-union Employment Rights
• Entitlement To Extended Health, Dental & Life Insurance Benefits – Group Policy
• Disability Insurance- Settlement & Impact On Continuing Availability Of Employment
• What If Employment Terminates During Ltd Case
• Severance And Whether It Can Be Offset
• Employment Releases And Language To Protect A Potential Claim For Disability Benefits
• Employment Releases And Language To Protect Ongoing Claim For Disability Benefits

View the full ‘Employment Law & Insurance Benefits’ by clicking here.