As we know, estate litigation can sometimes drag on for many years with the parties conducting multiple examinations for discovery. Over the course of time it can be easy to forget our obligations under Rule 31.09 of the Rules of Civil Procedure.
According to the Rule, after an examination for discovery if the party examined later realizes an answer given on examination was incorrect or incomplete or is no longer correct and complete based on subsequently obtained information, the party must provide the correct or expanded information to the examining party in writing. The written answer then becomes part of the original examination and, according to case law (Capital Distributing Co. v. Blakey) both the original answer and the corrected answer become part of the record but the correction or expansion of an answer does not remove the originally incorrect answer from the record.
If the subsequently obtained information is not disclosed or the answer not corrected the party cannot use the subsequently obtained information at trial without leave of the trial judge. As well, failure to follow the rule can have cost consequences (Capela v. Rush).
The obligation to constantly review the answers given and the burden to correct answers from examinations for discovery can easily be forgotten during the course of the litigation. Compliance with this rule is time consuming and add to the cists – but a necessity given the trial consequences. It is important to review historical transcripts in the files which have multiple examinations over the course of many years to ensure compliance with this rule and avoid adverse cost consequences.
But, as an interesting note, the obligation to disclose subsequently obtained information as part of oral discovery does not arise in the context of cross-examinations on affidavits – only examinations for discovery. The reason? The different obligations between examination for discovery and cross examinations reflect the different purposes of each examination (Galler v. Morganstein).
Jasmine Sweatman/Leigh Sands