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.

Changes

Proposals

The proposal clarifies where and how out‑of‑court examinations fit into the new model and tightens procedure to minimise disputes:

• Out‑of‑court examinations will be available in six instances:
  • cross‑examinations in Application Track cases;
  • cross‑examinations in Summary Track cases;
  • focused examinations in Trial Track cases;
  • cross‑examinations on motions;
  • examinations of non‑parties on motions; and
  • examinations to preserve evidence (examinations de bene esse under Rule 36.01).
• Remote by default. Out‑of‑court examinations will presumptively proceed remotely. A party seeking in‑person attendance must show valid reasons (for example, no access to appropriate technology).
• Trauma‑informed safeguards. In matters involving allegations of violence, the alleged abuser cannot conduct the examination of the alleged survivor and cannot be visually present on screen during that examination. Counsel must conduct the examination, or another person approved at a Directions Conference.
• Narrow, clear refusal grounds. A question must be answered unless: (a) it intrudes on privilege; (b) it is scandalous (irrelevant and highly confidential, proprietary, or disgraceful); or (c) it is so misleading or beyond the proper scope that it is not fair or appropriate to ask. Taking questions "under advisement" is abolished. Requests for undertakings may be refused if compliance would be disproportionate in time or cost to the significance of the evidence sought. All other objections are stated briefly on the record, and the answer is given.
• Admissibility of any evidence given under objection will be determined by the dispositive hearing judge.
• Mandatory recording. All out‑of‑court examinations must be audio‑ and video‑recorded. This improves behaviour, creates a reliable record, and gives hearing judges a way to assess credibility without recalling witnesses for live testimony.
• Fast, standardised follow‑up on undertakings/refusals. The examining party must complete and send Parts C and D of the Discovery Request Chart within 15 days of the examination; the examined party must return a completed chart within 15 days of receipt. This keeps follow‑up tightly scheduled and reduces drift.

Why this matters in practice:

• You keep the tools that help you test evidence and obtain admissions—but with firm rules to prevent discovery from spiraling.
• Remote first, video‑recorded exams normalise efficient, professional practice and reduce scheduling drag.
• Clear refusal grounds, no "under advisement," and quick chart‑based follow‑up mean fewer fights and faster completion of the record.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.