Examinations Out of Court: What’s Changing and Why It Matters for Ontario Litigators

Introduction 

Ontario’s Civil Rules Review proposes targeted, practical changes to how out‑of‑court examinations are used and managed. The goal is simple: keep the benefits of examinations while curbing the delays, costs, and satellite disputes they can create. The reforms keep examinations available where they add value, set clear guardrails for conduct, and streamline how undertakings and refusals are dealt with.  

Proposals 

Out‑of‑Court Examinations 

Out‑of‑court examinations will be available in six instances: 

1. Cross‑examinations in Application Track cases 

2. Cross‑examinations in Summary Track cases 

3. Focused examinations in Trial Track cases 

4. Cross‑examinations on motions 

5. Examinations of non‑parties on motions 

6. Examinations to preserve evidence (examinations de bene esse under Rule 36.01) 

Mode of Attendance

Examinations will proceed remotely unless a party demonstrates valid reasons for an in‑person format (e.g., lack of access to appropriate technology). 

Trauma‑Informed Safeguards 

In matters involving allegations of violence:  

• The alleged abuser cannot conduct the examination of the alleged survivor. 

• The alleged abuser cannot be visually present on screen during the examination. 

• The examination must be conducted by counsel or another approved person designated at a Directions Conference. 

Refusal Grounds and Objections

Refusal grounds are narrow and clear. A question must be answered unless it:

• Intrudes on privilege 

• Is scandalous (irrelevant and highly confidential, proprietary, or disgraceful) 

• Is misleading or beyond proper scope such that it is unfair or inappropriate 

Additional points:

• The practice of taking questions “under advisement” is abolished. 

• Undertakings may be refused where compliance is disproportionate in time or cost relative to the significance of the evidence sought. 

• All other objections must be stated briefly on the record, and the witness must answer the question. 

Admissibility

Any evidence given under objection will have its admissibility determined by the dispositive hearing judge. 

Mandatory Recording

All out‑of‑court examinations must be audio‑ and video‑recorded to ensure:

• Improved behaviour 

• A reliable record 

• Enhanced credibility assessments without needing to recall witnesses 

Follow‑Up on Undertakings and Refusals

Standardized 15‑day / 15‑day process: 

• The examining party must send Parts C and D of the Discovery Request Chart within 15 days of the examination. 

• The examined party must return the completed chart within 15 days of receiving it. 

• This ensures timely and structured follow‑up. 

Why This Matters in Practice 

The proposed reforms allow litigators to retain the tools necessary to test evidence and secure admissions, while introducing firm procedural safeguards that prevent discovery from expanding unnecessarily. By making remote, video‑recorded examinations the default, the framework encourages efficient and professional conduct, reduces scheduling challenges, and supports a more streamlined examination process. 

Recommendations 

To lock in these improvements, the proposal recommends amending Rule 34 (Procedure on Oral Examinations) to: 

• Presume remote attendance for all out‑of‑court examinations unless parties consent to in‑person or a party shows valid reasons against remote.  

• Require both audio and video recording of all out‑of‑court examinations.  

• Enforce trauma‑informed limits on who may examine and who may be visually present in cases involving allegations of violence.  

• Curtail refusal grounds to privilege, scandalous questions, or questions so misleading/beyond scope that they are unfair; abolish taking under advisement; and allow proportionality‑based objections to undertakings.  

• Defer admissibility determinations to the dispositive hearing judge unless an advance ruling is clearly necessary and consistent with the reform Goals.  

• Mandate the 15‑day/15‑day Discovery Request Chart process to manage undertakings and refusals swiftly and predictably.