From time to time, U.S. lawyers find themselves involved in oral discovery in Ontario, Canada, in one of the following contexts: U.S.-based in-house counsel may be charged with managing litigation brought in Ontario. U.S. counsel handling cases in their own jurisdictions may wish to obtain evidence under letters rogatory from witnesses located in Ontario. Or U.S. counsel acting in a U.S. proceeding with a related or parallel Ontario action may wish to observe Ontario discovery.
In any of these circumstances, U.S. counsel may attend or participate in what, in Ontario, is called an “examination for discovery.” While U.S. counsel may be aware that examinations for discovery are different from U.S.-style depositions, they may not be familiar with the procedures and practices that govern oral discovery in Ontario. This article describes certain key characteristics of examinations for discovery as conducted in Ontario, some of which may be unfamiliar to a U.S. lawyer. It deals only with the discovery of fact witnesses, not experts. (There are no “expert depositions” in Ontario, although an expert who provides an affidavit on a motion may be cross-examined on that affidavit.)
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