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Despite clear rules that state examination for discovery of a party is a one-time event, it is common practice in personal injury actions for defence counsel to schedule a further discovery of a plaintiff as if it’s an entitlement, Toronto critical injury lawyers Dale Orlando and Alison Burrison write in Lawyers Weekly.
“There may be strategic reasons for plaintiff’s counsel to agree to a further examination, but typically, a second kick at the can by defence counsel is unlikely to improve the case from the plaintiff’s perspective and could have very adverse effects,” write Orlando and Burrison, partners with McLeish Orlando LLP.
‘Get an update’
Most often, the reasons for a second examination are “to get an update on how the plaintiff is doing since the last discovery or to ask questions regarding facts, opinions and conclusions in expert reports served since the first discovery,” the article says, adding whatever the motivation, the law is clear that a re-examination is only justifiable when “circumstances have fundamentally changed since the initial examination.”
In the recent ruling in Gauze v. Toronto Hydro Corporation et al, the article says Master Ronna Brott “reaffirmed the high onus that must be met by the defendant before a second examination for discovery of an injured plaintiff is granted.”
In the case, “the defendant alleged that productions from answers to undertakings, the service of expert reports and a change in the plaintiff ’s job position was enough to meet the onus for an order granting leave to examine the plaintiff for a second time,” write Orlando and Burrison. The request was dismissed, Lawyers Weekly reports.
