The Rules of Civil Procedure are quite clear as to when a lawyer may answer questions on behalf of their client during an examination for discovery.  The Rules though, appear to be less clear with respect to cross-examinations on affidavits, and as such, attention must be turned to case law.

According to Rule 31.08 of the Rules of Civil Procedure, questions on an oral examination for discovery, “…shall be answered by the person being examined but, where there is no objection, the questions may be answered by his or her lawyer”.  Simply put, if the examining party objects to an answer being given by the deponent’s lawyer, the examined party must answer the question and not their lawyer.

The rationale for this can be found in the Divisional Court decision of The Polish Alliance of Canada v. Polish Association of Toronto, where Justice Lauwers (quoting the Law of Civil Procedure in Ontario) states that: “…counsel for the party being examined should not interfere with the examination; the examiner is entitled to the evidence of the witnesses and not to that of counsel”.

Justice Lauwers provides further rationale (quoting Witnesses): “The primary reason for prohibiting communication between counsel and witness while testifying at trial is to prevent counsel from telling the witness what he or she should say. The same concern exists during a discovery, and consequently, the same basic restriction against counsel/witness communication should be in place”.

Applying the same reasoned rationale, and relying on the decision in 413528 Ontario Ltd, Justice Lauwers applies Rule 31.08 to cross-examinations on affidavits under Rule 39.02.

Therefore, whether it be an examination for discovery or a cross-examination on an affidavit, a lawyer may answer questions on behalf of the deponent, only if the examining party does not object.  There is no distinction between the two forms of examinations.

Noah Weisberg