Pretrial discovery generally intended to be used only for litigation in which it was obtained
BY Trevor Thomas 10 Apr. 2025
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In cases involving wrongful dismissal claims in court, it is not unusual for the employee (plaintiff) to concurrently commence a separate action before the jurisdiction’s human rights tribunal. An interesting issue that may arise in the course of these proceedings is whether evidence obtained from the court litigation process, through examination for discovery, can be used in the tribunal process.
An examination for discovery is a meeting where one party asks the other party questions about the dispute. The questions and answers (which are taken under oath) are transcribed and turned into a transcript. The transcript can be used in the court proceeding to help prove, or disprove, facts.
Can this transcript also be used in a tribunal complaint process? Before we examine this question, it is helpful to understand why one party – typically, the opposing party, may want to use the transcript in the tribunal process. Generally, the purpose is to impeach a witness. In other words, it is intended to help one party catch the other party in a lie.
There is no automatic right of a party to use a transcript from a court proceeding in a tribunal complaint process. The reason is that there is an implied undertaking given to the court under which evidence compelled during pretrial discovery from a party to civil litigation can be used by the parties only for...
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