Who’s on First (to be Examined at Discovery)?
In October 2026, Justice Spencer Nicholson released his Endorsement in A.F. v. The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, 2026 ONSC 6201, following a case conference to resolve a dispute about whether the plaintiff should be required to be examined for discovery before the representatives of the defendants.
Background:
The underlying action concerned allegations of historical sexual abuse that took place 40 years prior when the plaintiff was a minor between the age of 6-8 yeas old.
The parties agreed to schedule examinations for discovery in June 2027. The plaintiff prepared and served a draft Discovery Plan and an Affidavit of Documents. The defendants did neither.
Case Conference Submissions – Defendants:
The defendants’ principal argument was that the plaintiff’s evidence of the abuse and the potential perpetrator of said abuse “may become tainted, intentionally or unconsciously” if the defendant’s representatives were examined first before the plaintiff. [1]
Defence counsel also argued that it was conventional practice for plaintiffs to be examined first in historic sexual abuse cases.
Case Conference Submissions – Plaintiff:
In response, the plaintiff advanced arguments that since it had been the first party to comply with the Rules of Civil Procedure provisions on this point and that therefore it should be entitled to examine the defendants first.
Moreover, the plaintiffs submitted that victims of historic sexual abuse cannot always recall details such as dates, locations or names, and that the fact that “a plaintiff cannot identify or consistently recall the abusers’ name does not necessarily undermine the reliability of the core allegations”.[2]
Applicable Rules of Civil Procedure:
When Examination may be Initiated
Examination of Plaintiff
31.04 (1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents. R.R.O. 1990, Reg. 194, r. 31.04 (1).
Examination of Defendant
(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after,
(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the examining party has served an affidavit of documents; or
(b) the defendant has been noted in default. R.R.O. 1990, Reg. 194, r. 31.04 (2).
Completion of Examination
(3) The party who first serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 31.04 (3).
Positions from Caselaw:
The presiding case conference judge focused his analysis on the phrase “unless the court orders otherwise” in Rule 31.04(3), and the underlying case law. In His Honour’s view, this phrase “is clearly meant to confer discretion on a judge to determine that the presumptive order of examinations should be altered.”[3]
His Honour cited with approval paragraph 33 of Ferguson v. Yorkwest Plumbing Supply Inc., 2023 ONSC 3720, which noted that “the overarching policy for civil discovery is the expectation that counsel work to agree on the logistics and do so in a timely, collaborative manner. No party has the automatic right to examine first given the discretion of the court.”[4]
The Diocese defendants cited the case of O’Halloran v. Clements, 2009 CarswellOnt 9726. This was a dog bite case, where the defendants denied the plaintiff was bitten by their dog and sought an order requiring the plaintiff to be examined first for discovery before a photograph of their dog was provided. The order was granted that he plaintiff was discovered before the photo of the alleged offending dog was provided.
The key takeaway advanced by the defendants in this case (which were agreed to by Nicholson J) was that the court can exercise its discretion to control the order of discovery, oral or documentary, where there is some prejudice, through the tainting of another party’s evidence. [5]
His Honour also considered a portion of Burns v. RBC Life Insurance Co., 2019 ONSC 6977, where Justice Perell noted:
“that under the strict approach of rule 31.04(3), the service of an affidavit of documents is an absolute requirement and since the defendant in that case had complied with the rule, it was prima facie entitled to go first. However, he noted that the court can, in the appropriate case, override the technical approach to achieve the most fair, efficient and organized conduct of the examinations for both parties”[6]
Another case that was considered by Justice Nicholson was Goss v. Leis, 2025 ONSC 2203, which followed Burns. In this case, Heeney J found that strict adherence to the rule meant that parties that had little firsthand knowledge of the key facts would be examined first, and so instead exercised his discretion to have those parties examined last, since they had the least useful evidence on the merits of the claim.[7]
The case that was advanced by the plaintiff in support of their position was Lambert v. Maracle, 2019 ONSC 7003 , which involved a case conference judge requiring a defendant to be examined first on the basis that its Affidavit of Documents was deficient and therefore had not preserved its prima facie right to examine the plaintiff first. [8]
The presiding case conference judge in Lambert conducted her own analysis and found no basis that the plaintiff in that case would tailor their evidence or that plaintiff counsel would improperly direct the plaintiffs on what answers to give.
Decision:
Justice Nicholson made a number of general findings that also impacted his decision.
First, His Honour acknowledge that the plaintiff’s knowledge about the identity of his alleged abuser would have been impacted by his age at the time of the incidents and the passage of time of more than 40 years.[9]
Furthermore, while defence counsel pointed out that plaintiffs were typically examined first in historic sexual abuse cases, Nicholson J declined to make this a broad or binding pronouncement, especially in the absence of any caselaw establishing the same.[10]
His Honour also acknowledged many of the plaintiff’s submissions that victims of historic sexual abuse do not always recall details about the abuse and that a failure to remember those details consistently should not necessarily undermine the reliability of the underlying allegations.
Ultimately, Justice Nicholson found that the plaintiff could not establish that they would suffer any prejudice by being examined first. However, in contrast, it found that given that the plaintiff’s recounting of the alleged abusive conduct was not fulsome, that it was preferable for him not have any knowledge which could taint, even inadvertently, his evidence at discoveries.
His Honour was careful to state that he did not believe that the plaintiff would consciously tailor his evidence, but that there was a real risk that the plaintiff’s evidence could be tainted subconsciously unless he is examined first.[11]
His Honour also praised plaintiff counsel for following the Rules. Moreover, he did not find that the defendants were engaging in any sort of conduct or delays as a tactic in the litigation which in Lambert resulted in cost consequences for the insurer for needlessly trying to delay the matter for purely tactical purposes.
As such, Justice Nicholson ordered that the plaintiff should be produced for examination for discovery first.
Conclusion and Takeaways:
This case decision provides some helpful guidance to parties, beyond the historic sexual abuse claim context, on factors to consider when scheduling examinations for discovery and setting the order of the parties.
While the Rules do set out a prima facie position that the “the party who files first, discovers first”, this is not an absolute and is still subject to the Court’s discretion over the “order of discovery, oral or documentary”.
This decision and those others cited within, stand for the proposition that the primary goal is getting the best evidence of the parties. In cases where is no prejudice to the party opposing the prima facie order of discoveries, and where there is a real concern of conscious or subconscious tainting or modification of evidence, the Court can step in to impose a different schedule and order for discoveries.
[1] A.F. v. The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, 2026 ONSC 6201 (CanLII) at para 4.
[2] Ibid, at para 13.
[3] Ibid, at para 9.
[4] Ibid, at para 12.
[5] Ibid at para 15.
[6] Ibid at para 20 citing Burns v. RBC Life Insurance Co., 2019 ONSC 6977 at paras 43-44.
[7] Ibid, at para 21.
[8] Ibid, at paras 22-23.
[9] Ibid, ata para 2.
[10] Ibid, at para 5.
[11] Ibid at paras 23-24.