Examinations for Discovery have always been recognized as a vital component in the legal process of Bodily Injury cases in Ontario for several reasons, including:
- Fact-Finding: It allows both parties to gather detailed information and insight into the case; understand the circumstances surrounding the accident; and the nature and impact of injuries sustained, if any.
- Assessment of Credibility: It allows parties to assess the credibility of the Plaintiff’s and Defendant’s testimony which can significantly influence the outcome of the case.
- Trial Preparation: It helps lawyers identify strengths and weaknesses in their case, allowing for more effective trial preparation.
- Settlement Opportunities: Often, the information gathered during discovery can prompt meaningful settlement discussions leading to an early resolution, without the need for a trial.
- Tran: Everything said during the examination is recorded, creating a record that can be referred to during trial to support or challenge evidence.
Despite its advantages, in 2026 the Civil Rules Review Working Group (CRRWG) is looking to bring changes which include the elimination of Examinations for Discovery and replacing it with an early disclosure of all affidavits from all anticipated trial witnesses and documentation to be used at trial.
Among the proposed reforms, the elimination of discoveries is by far the most discussed and striking proposal for litigators.
Without oral testimony prior to trial, lawyers lose the critical opportunity to assess a plaintiff’s credibility and identify inconsistencies in their affidavits or documents. With trial being the first time evidence is heard, both parties may face unexpected developments, making it harder to anticipate and counter arguments. The elimination of discovery also removes the ability to request undertakings for key documents. Under the proposed 'documentary disclosure', there’s concern that parties may withhold materials that could support the opposing case. Without the mechanism of undertakings, obtaining crucial evidence may become significantly more challenging.
The idea to eliminate Examinations for Discovery in June 2026 was part of a broader initiative to streamline the legal process, and a wider effort to reduce time and costs associated with litigation. The rationale behind this change stems from factors including:
- Efficiency: It is aimed to speed up litigation, allowing parties to resolve disputes in a shorter timeframe and reduce the backlog in Courts.
- Reduce Costs: Discoveries can be expensive, involving significant legal fees and costs for both parties.
- Streamline: The change is intended to streamline the pre-trial process, by removing the need for a lengthy discovery procedure.
- Key Issues: Removing discoveries will allow lawyers to concentrate on the key issues, promoting more direct and efficient case resolutions.
Until these changes are implemented, it remains uncertain whether they will lead to an increase in settlements or trials. On one hand, the inability to gather comprehensive evidence may discourage settlement; on the other, the inability to obtain further documentation might force early resolution due to limited access to additional documentation.
Although these changes are designed to enhance efficiency, the reforms will also present challenges for litigants and require a shift in mindset for all parties involved. A fuller analysis will follow once the final version is known, now that the consultation period has concluded. It will be interesting to see how the new reform and changes shape the future of litigation.
Disclaimer: Supriya Sharma is a member of Desjardins Claims Legal Department. The opinions expressed in this paper are those of the author and do not necessarily reflect the opinions of the Desjardins Companies.
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