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Ontario court re-asserts limits on how much plaintiff’s counsel can help client during discovery


April 21, 2010   by Canadian Underwriter


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The Ontario Superior Court recently re-asserted the limits of how much a plaintiff’s counsel can help his or her client during an examination for discovery in an action concerning a motor vehicle accident.
In Michael Madonis v. Julian G. Dezotti and Donna L. Dezotti, counsel for the plaintiff (Madonis) made numerous attempts to provide answers on behalf of his client, and several times suggested the written record would be preferable to his client’s oral testimony. He did this repeatedly, over the objections of the counsel for the defendants.
Counsel for the Dezottis then appealed to the Superior Court to throw out the evidence obtained in the examination for discovery, because the examination had been “interfered with by an excess of improper interruptions or objections.”
The defendants asked for, and received, costs ($1,850) for the terminated examination for discovery.
The Superior Court then laid down the following model for an examination for discovery, which, the court emphasized, applied only in situations when counsel are not co-operating with each other during the process.
•    The lawyer for the plaintiff may not interrupt the examination for discovery except
o    to state that he objects to a question, briefly stating the basis for the objection and directing the plaintiff not to answer or to answer under objection or
o    to seek clarification of a question.
•    The lawyer for the plaintiff shall not answer or offer to answer any question on behalf of the plaintiff or refer to any document to assist either the plaintiff or the examining lawyer or place any document before the plaintiff unless invited to do so by the examining lawyer.
•    The lawyer for the plaintiff shall not give instructions to the plaintiff about how to answer a specific question or questions generally once the examination has commenced.
•    The lawyer for the plaintiff shall not correct any answer given by the plaintiff except by way of re-examination under rule 34.11(1) following completion of the examination by the defendants’ lawyer or by written corrections under rule 31.09(1)(a).”


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