Things are changing by the hour and it looks like later tonight another announcement will be coming about the closure of the Ontario Courts on Tuesday. I was just about to write this post with some suggestions to keep us all safe in the courts as we are there every day at times up to 8 hours at the counters issuing, filing and doing research. Depending on what happens across Canada and as every court is different if the counters do stay open it would be prudent to implement immediately some safe protocols to keep everyone safe and at a distance from each other. Some courts have tiny offices that we attend and people are at times crammed inside all together. My suggestion is that if this is the case for your courthouse that you assign waiting areas in the hallway, etc, anything that would keep people safely away at the 3-6 foot suggestion. Assigning a chit system like we have unofficially done in the past would also help. We are going to strongly suggest to all law firms that if the court in question can issue documents online to do that instead of us attending. Removing pens at the counter is another small tip, each of us should be empowered to come up with ways to keep us all safe. If the counters close to us on Tuesday as well, please do not call Monday for an emergency issuing or filing if you have a limitation date coming up. The courts will obviously grant an extension.

Our Port Rowan office will be relocating to Tillsonburg in a few weeks. This new office location will be better able to serve you in Oxford County. We look forward to serving you out of this new location, in order to locate the closest process serving office to your needs always use the search by city or postal code that is located on our main page.

Toronto Civil Court- The new normal

The court moved from 393 University Avenue to 330 University Avenue in mid January and the new location is an unmitigated disaster. It is 1/10th the size of the previous location and the time to complete any filing or file search has been multiplied exponentially.

To complete any filing, you must first line up for 15-60 minutes to get a number and then wait times to be served are 2-3 hours at best. On many days if you don’t have a number by around 10:30 a.m. you risk not getting served at all. The only way to guarantee service is to arrive before 7:30 a.m. and line up outside the building as they won’t allow people inside until opening. Any filing that requires the clerk to have the physical file is now further delayed. Previously we would order the file ahead of time so it would be available when we got to the counter. Now, the clerk orders it at time of service and then there is a further delay of 30-60 minutes for the file to be brought up from the basement.

The only current exception is for Motion materials which have a separate queue and usually can be completed within an hour. However, this is the 3rd change to the queuing system they have made in a month so there is no guarantee it will continue. Part of this problem is they were trying to direct more difficult/involved filings to more experienced clerks but staffing levels are low, several senior clerks have gone part-time or retired as they hate the new working environment.

File searches or copying is now also a much longer procedure. There are only 2 Public view terminals to look up files and they are always in use creating line-ups. While at the previous location you could order a physical file and have it within 10 minutes to view and copy it is now a 1-3 hour procedure if the file is stored in the basement of the new building or a 1-10 day wait depending on which off-site location the file is located. Files prior to 2016 will generally be the longer wait time.

While the process for orders and judgments hasn’t changed other than the extra wait time to file there has also been a notable increase in time for the signed originals to come back completed. What used to be 2-4 weeks is now 6-8 weeks and counting.

The new location is also very uncivilized for the people attending there. There are exactly 6 chairs in the cramped waiting area by the counters. At the old location there was seating for approximately 80 in addition to a cafeteria, variety store and more seating in the expansive lobby. The new building has none of this, in fact they just recently removed the 2 benches in the lobby. As mentioned, you are forced to wait outside regardless of weather in the morning before the court opens and you can find no assistance from the court office or building management in trying to improve conditions or procedures.

So, what does this all mean?

Expect delays as mentioned above, we will be doing our best to complete your files as we have for decades, but please understand the obstacles we are now facing.

So, you have been served by a process server with a Notice of Examination, now what do you do? If you have a lawyer let them know that you have been served, they will advise you to the next steps.

If you do not have a lawyer, here are are some general guidelines on what to do and expect.

On the examination you will see a time and place for your examination.

During your examination for discovery, the opposing party’s lawyer will ask you questions. Before you are questioned, you will be asked to swear or affirm to tell the truth. I will be present during your questioning to ensure that no improper questions are asked of you. I will also have the opportunity to ask questions of your opponent.

An examination for discovery is an important stage of a lawsuit. It allows us to better understand our case and the case of our opponent. During an examination for discovery, the lawyer who is asking the questions will attempt to do the following:

• obtain admissions which will help prove his/her case;

• obtain admissions which will weaken his/her opponent’s case; and

• discover the facts and evidence upon which his/her opponent relies on to support his/her case.

Your examination for discovery is not held in a courtroom in front of a judge; rather, it is held in the presence of a court reporter who records all of the questions and answers. After the examination for discovery, all of the questions and answers are transcribed in an official transcript.

The transcript of your evidence can only be used by the opposing party at trial. It can be used against you as follows:

• if you admitted anything during your examination for discovery that is damaging to your case, the opposing lawyer can read the admission as evidence at trial. I can only use your transcript to qualify or explain the portion of the transcript that the opposing party has already used against you at trial; and

• to undermine your credibility. If, while testifying at trial, you provide evidence that contradicts the evidence you provided during your examination for discovery, the opposing lawyer can confront you with the transcript of the evidence from your examination for discovery to undermine your credibility.

Likewise, I can utilize the transcript from your opponent’s examination for discovery for the purposes outlined above.

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. You have a duty to answer all proper questions truthfully and to the best of your ability. At the same time, you want to be careful that you do not provide answers that you will later regret. To this end, I have listed below several suggestions that provide you with guidance as to how you should conduct yourself during your examination for discovery.

1. Wait until the question is asked before you start to answer

Do not attempt to answer a question until you have formulated your answer. Because a “pause” is not reflected in the transcript, take your time when answering the questions asked of you.

2. Just answer the question that is asked

Listen carefully and only answer the question that is asked. Do not volunteer information. Offering more information than what is asked of you not only will increase the cost of the transcript, it may also provide your opponent with information that damages your case.

3. Never guess

If you do not know the answer to a question, say so. In an appropriate case, we can undertake to provide the answer at a later date. On the other hand, if you do know an answer, do not preface your response by saying “I think” or “it is possible.” If you preface your answers with comments such as these, it will appear that you are not sure of anything.

4. If you do not understand the question, say so

Ask that the question be repeated or rephrased. It is better to clarify what the lawyer is attempting to ask than to provide an answer that may be unresponsive.

5. Always answer the question verbally

Because the transcript will only record the spoken word, please answer the question verbally as opposed to shaking your head. Also, please avoid answering with “yup” or “uh-huh” since phrases such as these can be misleading. If you make reference to a document, please clearly identify what document you are referring to and, if possible, advise where in the document you are referring to (e.g. “in the first paragraph”).

6. If I object to a question, do not provide an answer

Even if you disagree with my objection, do not answer a question that I have objected to. For tactical reasons, I will probably not object to a question unless it is very improper or totally irrelevant. We have nothing to hide and I do not want to convey the impression that I am trying to protect you during the examination for discovery.

7. Treat the opposing lawyer with respect

It is in your interest to follow this advice at your examination for discovery. The opposing lawyer is there to assess you as a potential witness. If you appear as a hostile person that nobody would like, the lawyer will presume that the judge will probably not like you either. On the other hand, if the opposing lawyer thinks that you are a decent, likeable person, he/she will presume that the judge will think so as well. Essentially, you want to convey the impression that you will be a good witness at trial.

8. Tell the truth

You are of course under a duty to tell the truth. Telling the truth is also an important strategic point. Sometimes, people are tempted to fudge certain details. Do not do this. Being caught in a lie, however small, will cast doubt on everything that you have said.

After your opponent’s lawyer has finished asking you questions, I may ask you some questions if I feel they are necessary to clarify some of your answers.

Once your examination for discovery is concluded, we can order a copy of your transcript. I will ask you to review your transcript and to advise if you provided any incorrect or incomplete answers. We have a duty to inform the opposing party, in writing, of any errors or incomplete answers.

The above has been provided by Aaron Rousseau, Partner of the law firm of Rousseau Mazzuca LLP.
T. 416.304.9899 F. 437.800.1453
65 Queen Street West, Suite 600, Toronto, Ontario M5H 2M5
www.rousseaumazzuca.com

Just a quick reminder that head office is closed today in observation of the holiday.