Generally, the first party to serve a sworn affidavit of documents and a notice of examination is entitled to examine the opposing party for discovery before being examined himself or herself.
However, the decision in Lambert v. Maracle, 2019 ONSC 7003, shows that, in order to rely on this rule, the party must serve a proper affidavit of documents.
Justice MacLeod-Beliveau held that the defendants’ affidavit of documents was deficient and not in compliance with the Rules of Civil Procedure. The deficiencies rendered the affidavit of documents a nullity.
As a result, Her Honour held that the defendants did not preserve priority in conducting examinations for discovery.
A court has discretion to change the order of discoveries if a party will tailor his or her evidence. However, Justice MacLeod-Beliveau held there was insufficient evidence that the plaintiffs would tailor their evidence if they were examined after the defendants.
Therefore, Her Honour determined that the plaintiffs, who served an appropriate affidavit of documents, are entitled to examine the defendants first.