Effect of Lawyer Answering
 31.08 Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.  R.R.O. 1990, Reg. 194, r. 31.08; O. Reg. 575/07, s. 4. Information Subsequently Obtained Duty to Correct Answers 31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination, (a) was incorrect or incomplete when made; or (b) is no longer correct and complete, the party shall forthwith provide the information in writing to every other party.  R.R.O. 1990, Reg. 194, r. 31.09 (1). Consequences of Correcting Answers (2) Where a party provides information in writing under subrule (1), (a) the writing may be treated at a hearing as if it formed part of the original examination of the person examined; and (b) any adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery.  R.R.O. 1990, Reg. 194, r. 31.09 (2). Sanction for Failing to Correct Answers (3) Where a party has failed to comply with subrule (1) or a requirement under clause (2) (b), and the information subsequently discovered is, (a) favourable to the party’s case, the party may not introduce the information at the trial, except with leave of the trial judge; or (b) not favourable to the party’s case, the court may make such order as is just.  R.R.O. 1990, Reg. 194, r. 31.09 (3). Discovery of Non-Parties with Leave General 31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.  R.R.O. 1990, Reg. 194, r. 31.10 (1). Test for Granting Leave (2) An order under subrule (1) shall not be made unless the court is satisfied that, (a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine; (b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and (c) the examination will not, (i) unduly delay the commencement of the trial of the action, (ii) entail unreasonable expense for other parties, or (iii) result in unfairness to the person the moving party seeks to examine.  R.R.O. 1990, Reg. 194, r. 31.10 (2). Costs Consequences for Examining Party (3) A party who examines a person orally under this rule shall serve every party who attended or was represented on the examination with the transcript free of charge, unless the court orders otherwise.  R.R.O. 1990, Reg. 194, r. 31.10 (3). (4) The examining party is not entitled to recover the costs of the examination from another party unless the court expressly orders otherwise.  R.R.O. 1990, Reg. 194, r. 31.10 (4). Limitation on Use at Trial (5) The evidence of a person examined under this rule may not be read into evidence at trial under subrule 31.11 (1).  R.R.O. 1990, Reg. 194, r. 31.10 (5). Use of Examination for Discovery at Trial Reading in Examination of Party 31.11 (1) At the trial of an action, a party may read into evidence as part of the party’s own case against an adverse party any part of the evidence given on the examination for discovery of, (a) the adverse party; or (b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise, if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.  R.R.O. 1990, Reg. 194, r. 31.11 (1); O. Reg. 260/05, s. 8. Impeachment (2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.  R.R.O. 1990, Reg. 194, r. 31.11 (2). Qualifying Answers (3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.  R.R.O. 1990, Reg. 194, r. 31.11 (3). Rebuttal (4) A party who reads into evidence as part of the party’s own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf or in place of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.  R.R.O. 1990, Reg. 194, r. 31.11 (4). Party under Disability (5) The evidence given on the examination for discovery of a party under disability may be read into or used in evidence at the trial only with leave of the trial judge.  R.R.O. 1990, Reg. 194, r. 31.11 (5). Unavailability of Deponent (6) Where a person examined for discovery, (a) has died; (b) is unable to testify because of infirmity or illness; (c) for any other sufficient reason cannot be compelled to attend at the trial; or (d) refuses to take an oath or make an affirmation or to answer any proper question, any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.  R.R.O. 1990, Reg. 194, r. 31.11 (6). (7) In deciding whether to grant leave under subrule (6), the trial judge shall consider, (a) the extent to which the person was cross-examined on the examination for discovery; (b) the importance of the evidence in the proceeding; (c) the general principle that evidence should be presented orally in court; and (d) any other relevant factor.  R.R.O. 1990, Reg. 194, r. 31.11 (7). Subsequent Action (8) Where an action has been discontinued or dismissed and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, the evidence given on an examination for discovery taken in the former action may be read into or used in evidence at the trial of the subsequent action as if it had been taken in the subsequent action.  R.R.O. 1990, Reg. 194, r. 31.11 (8). RULE 32  INSPECTION OF PROPERTY