Court File and Parties

COURT FILE NO.: CV-15-524799 MOTION HEARD: 2017-04-27 REASONS RELEASED: 2017-05-04 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SURINDER SHARMA Plaintiff

• and-

AMEC NSS LIMITED Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: Elizabeth Roberts, for the Plaintiff, Surinder Sharma Katherine Booth, for the Defendant, AMEC NSS Limited

REASONS RELEASED: May 4, 2017

Reasons for Endorsement

I. Overview

[1] This is a motion by the plaintiff, Surinder Sharma, seeking to compel the defendant, AMEC NSS Limited (“AMEC”) to answer one question refused at the examination for discovery of Jeremy McEachern of AMEC and for Mr. McEachern to re-attend on discovery at AMEC’s expense to answer any proper questions arising from the answer.

[2] When the plaintiff originally brought this motion on February 2, 2017, he sought to strike out AMEC’s defence for failure to answer numerous undertakings and questions taken under advisement on Mr. McEachern’s discovery. By the time this motion was heard, the parties had resolved all outstanding issues except AMEC’s refusal to produce any communications or emails in writing that may have been generated with respect to the selection of engineers for the project at issue in this action.

[3] With a view to resolving this lone refusal, after serving its responding motion materials, the defendant conducted additional targeted e-mail searches and communicated the results to counsel for the plaintiff and the court on the morning of the motion. After considerable discussion in court and between counsel, the plaintiff’s request was narrowed to three (3) e-mail search terms.

[4] Further discussion in court failed to result in an agreement between the parties as to how to proceed with respect to the plaintiff’s revised request. Therefore, the only issue which I must decide is whether to order that the defendant conduct the plaintiff’s proposed targeted search using these 3 search terms and to produce any relevant e-mails it generates.

II. Background

[5] Mr. Sharma is a professional engineer. AMEC is an engineering firm.

[6] This action arises from AMEC’s successful bid dated August 2, 2012 (the “Bid”) submitted in response to a task request issued by Ontario Power Generation (“OPG”) with respect to a retube and feeder replacement project (the “Project”) at the Darlington Nuclear Generating Station (“Darlington”). The Project was part of OPG’s larger program for the refurbishment of Darlington to which AMEC supplies engineers.

[7] The plaintiff claims damages in the amount of $500,000 plus interest and costs arising from an alleged breach of contract by AMEC of an agreement between Mr. Sharma and AMEC pursuant to which Mr. Sharma’s name was submitted with the Bid as one of the potential engineers for the Project (the “Agreement”). One of the terms of the Agreement was that Mr. Sharma would be exclusive to AMEC on the Bid. As a result, the plaintiff alleges that he withdrew from various discussions and declined availability with other engineering firms which were bidding on the Project.

[8] AMEC was awarded the Owner Support Services Contract (“OSS”) for the Project, however, Mr. Sharma was never mobilized or engaged to work on the Project. Mr. Sharma alleges that positions arose for which he should have been engaged but that AMEC refused to hire him. He further alleges that had he understood that AMEC reserved the right not to engage him on the Project, he never would have agreed to the exclusivity provision of the Agreement and he would have applied to work with other bidders on the Project.

[9] AMEC alleges that it was always understood as part of the Agreement that if and how much Mr. Sharma worked on the Project depended on whether OPG selected him from the list of engineers submitted with the Bid and AMEC made no guarantees with respect to when or if Mr. Sharma would be engaged. AMEC further submits that beginning in or around October 2012 until July 2015, OPG issued purchase orders to AMEC for work on the Project pursuant to which it selected engineers from the list submitted by AMEC. OPG did not select Mr. Sharma.

[10] The lone refusal at issue arises from Question 114 at Mr. McEachern’s examination for discovery held October 7, 2015. This question and the plaintiff’s submission with respect to its relevance is set out at paragraph 23 of the affidavit of J. Gardiner Hodder sworn April 18, 2017 (the “Hodder Affidavit”), counsel for the plaintiff:

“With respect to question 114 of AMEC’s refusals, the defendant has misstated the question as a demand for “all further written communications with OPG over the course of the lifetime of the Project”. The question asked was for the production of any emails or communications in writing that may have been generated in respect to OPG’s selection of engineers for the OSS RFR Project. This is singularly germane to a core issue. The answer to this question will likely help determine whether OPG declined to select the plaintiff for work on the Project, as alleged by the plaintiff. This fact is material to matters at issue between the parties and is raised in both the statement of claim and statement of defence.”

[11] In Mr. McEachern’s affidavit sworn April 21, 2017, filed by AMEC on this motion, Mr. McEachern confirms that he was AMEC’s primary contact with OPG until approximately October 2013 and was copied on all correspondence with OPG with respect to the selection of engineers. With respect to question 114, Mr. McEachern states that AMEC has already taken the following steps:

i.) AMEC has produced all available Purchase Order Revisions issued by OPG which confirm the selection of personnel for the Project by OPG and that Mr. Sharma was not selected; ii.) AMEC has collected and preserved all of Mr. McEachern’s emails from 2012 until approximately July 2015 which were keyword searched for the terms “Surinder” and “Sharma” and Mr. Sharma’s email address sharmas_28@hotmail.com and produced various Schedule “A” productions; and iii.) Mr. McEachern performed an informal manual keyword review of his emails to determine if there were any e-mails between AMEC and OPG which discuss Mr. Sharma in respect of OPG’s selection of engineers for the Project which did not generate any hits.

[12] At paragraph 14 of Mr. McEachern’s affidavit, he states that AMEC is prepared to conduct an additional targeted search to confirm if there is any relevant email correspondence regarding Mr. Sharma with respect to the selection of engineers for the Project:

“Namely, AMEC is prepared to perform a search in the database of my emails for correspondence to or from OPG that refers “Surinder” or “Sharma” and to produce relevant emails, if any, that discuss Mr. Sharma in relation to the selection of engineers for the Project”.

[13] After serving its responding motion materials and prior to the hearing of this motion, AMEC performed this proposed search. On the morning of this motion, counsel for AMEC advised counsel for the plaintiff and the court that no e-mails were generated from this search.

[14] With respect to the broader search sought by the plaintiff ie. the selection of all engineers engaged on the Project by OPG, AMEC submits that thousands of e-mails were exchanged from 2012-2014 with respect to the Project as a whole and over 100 different engineers were selected and engaged by OPG. Therefore, it would require considerable time, effort and cost to search and review these emails.

[15] After considerable discussion between counsel and the court, counsel for the plaintiff narrowed the relief sought to request that AMEC search all of Mr. McEachern’s email messages from 2012-2015 for the following 3 search terms: “select engineer”; “hire engineer”; and “choose engineer”.

[16] Counsel for the defendant advised that AMEC would not agree to this revised request on the basis that, while narrower, it was still sufficiently broad that it would likely generate thousands of hits given that over 100 engineers were selected, hired or chosen for the Project. This would require AMEC to spend significant time and cost reviewing the e-mails generated. AMEC submits that this is not necessary or proportional given that AMEC has already produced the Purchase Order Revisions which AMEC submits are the relevant and definitive documents setting out which engineers OPG selected. These are in addition to the other targeted searches and documents produced set out above which are specific to Mr. Sharma.

[17] When asked, counsel for the plaintiff did not have any proposal or additional search terms which the court or the defendant could consider with respect to next steps after AMEC searched these 3 terms which would further narrow the request or reduce the time and cost involved in reviewing the e-mails generated. Counsel for the defendant submits that the logical, reasonable and proportionate next step would be to search the terms “Surinder” or “Sharma” which AMEC has already done and which generated no hits.

[18] Therefore, the only issue I must decide is whether or not it is appropriate to grant an order compelling the defendant to conduct additional searches of Mr. McEachern’s e-mails for the period 2012-2015 for the terms “select engineer”; “hire engineer”; and “choose engineer” and to produce any relevant e-mails.

III. The Law and Analysis

[19] The plaintiff did not file any written legal arguments or case law. Essentially, the plaintiff’s legal submissions on this motion are summarized at paragraph 14 of the Hodder Affidavit, cited above.

[20] In all of this, there is an important distinction. The plaintiff is not seeking e-mails relevant to the reasons why OPG selected certain engineers for the Project. Rather, the plaintiff is seeking e-mails relevant to AMEC’s allegation that it was OPG and not AMEC who declined to select Mr. Sharma for the Project. This is clear from paragraph 14 of the Hodder Affidavit: “The answer to this question will likely help determine whether OPG declined to select the plaintiff for work on the Project, as alleged by the plaintiff.” (emphasis added). That is, the plaintiff’s request is with respect to who declined to select Mr. Sharma, not why they did not select him.

[21] Counsel for the defendant relies on Saliba v. Swiss Resinsurance Co. 2013 ONSC 6138. In Saliba, Perell J. upheld the decision of Master Muir dismissing the defendant’s motion pursuant to Rule 30.06 of the Rules of Civil Procedure seeking to compel the plaintiff to serve a further and better affidavit of documents including e-mails from the plaintiff’s personal computer in a wrongful dismissal action.

[22] Master Muir dismissed the motion for three reasons: i.) the documents requested by the defendant were only of marginal relevance; ii.) the defendant’s arguments about what the documents might reveal were highly speculative such that it amounted to a fishing expedition; and iii.) it would be inconsistent with the principle of proportionality for the plaintiff to expend the time and effort she described to produce the documents requested. Perell J. denied the defendant’s appeal based on the proportionality factors set out at Rule 29.2.03.

[23] Rule 31.06 of the Rules of Civil Procedure provides that:

(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action….

[24] Rule 30.02 of the Rules of Civil Procedure provides as follows:

(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

[25] Rule 29.2.03 of the Rules of Civil Procedure sets out the proportionality factors which apply to both oral and documentary discovery:

(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source. (2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[26] Relevance and the proportionality factors were comprehensively explained and applied by Perell J. in Ontario v. Rothmans Inc. 2011 ONSC 2504, which is cited in Saliba.

[27] In my view, the relevance of the additional e-mail searches which the plaintiff requests on the present motion is questionable. Similar to the court’s conclusion in Saliba, the plaintiff’s suggestions as to what these searches may uncover is also speculative.

[28] What is relevant are e-mails with respect to whether, as the defendant alleges, OPG declined to select Mr. Sharma to work on the Project. AMEC has already produced all available Purchase Order Revisions which list the engineers who OPG selected for the Project. AMEC has also searched Mr. Sharma’s first and last names generally and in the context of e-mails with respect to the selection of engineers for the Project. Given that the additional searches of Mr. Sharma’s first and last names of emails regarding the selection of engineers generated no hits, it is not clear what, if any, relevant emails would be generated by running the additional searches of the 3 more generic terms which do not contain his name.

[29] Having AMEC run the additional 3 search terms would, as the defendant submits, generate hits on a large number of e-mails dealing with the selection of over 100 engineers for the Project. In my view, it is mere speculation that any emails relevant to OPG’s non-selection of Mr. Sharma would be uncovered from this group given that the targeted searches of his name have revealed nothing. Although I would not characterize the plaintiff’s request as a “fishing expedition”, this would likely be the result of this exercise in the circumstances.

[30] More determinative is my conclusion that the plaintiff’s request for the additional e-mail searches is contrary to the principles of proportionality set out in Rule 29.2.03. AMEC has already produced all available Purchase Order Revisions which set out OPG’s selection of engineers and other personnel for the Project. This would seem to be a complete answer to the question of whether or not OPG declined to select Mr. Sharma for the Project. Quite simply, Mr. Sharma’s name does not appear on the Purchase Order Revisions, therefore, OPG declined to select him, though I accept that it was reasonable to believe that there may have been relevant emails between OPG and AMEC in which Mr. Sharma is discussed.

[31] However, to that end: i.) AMEC has also searched Mr. Sharma’s first and last name and email addresses and made certain Schedule “A” productions; ii.) Mr. McEachern conducted informal keyword searches of his e-mails related to the selection of engineers using Mr. Sharma’s name which generated no hits; and iii.) AMEC has now run the more formal targeted search of Mr. McEachern’s emails with OPG related to the selection of engineers described at paragraph 14 of Mr. McEachern’s affidavit using Mr. Sharma’s name which also generated no hits.

[32] In my view, it would be inconsistent with proportionality to now order AMEC to search the additional 3 targeted terms requested by the plaintiff and review them for relevance when the targeted search terms using Mr. Sharma’s name already run on the same group of e-mails generated no hits. This requested search would likely generate a significant number of emails (given that it relates to the selection of over 100 engineers for the Project) which would result in a labour intensive and costly effort by AMEC and its counsel to review for relevance. I agree with the defendant’s submission that, if I were to order that the 3 additional targeted terms be searched, the logical, reasonable and proportionate next step would be for AMEC to search the group of e-mails generated using Mr. Sharma’s first and last names. AMEC has already done this and it generated no hits.

[33] Accordingly, the plaintiff’s motion seeking an order compelling the defendant to run the 3 additional search terms and produce any relevant documents is dismissed.

IV. Disposition

[34] Order to go dismissing the plaintiff’s motion.

[35] With respect to the costs of this motion, after service of the plaintiff’s Motion Record, the parties settled substantially all of the outstanding issues related to the relief sought by the plaintiff such that this was a straightforward, one issue motion. Further, counsel worked diligently and co-operatively together and with the court in an attempt to resolve the last remaining issue and further narrow the plaintiff’s request. It is also relevant that the plaintiff was not aware until the morning of the motion that the defendant had already run the targeted searches of Mr. Sharma’s name set out at paragraph 14 of Mr. McEachern’s affidavit and that this generated no hits. Had the plaintiff known this before the motion, it may have affected how his counsel proceeded.

[36] Accordingly, and having considered the factors in Rule 57.01 of the Rules of Civil Procedure, I have concluded that it is appropriate for the parties to bear their own costs of this motion.

Released: May 4, 2017

Master M.P. McGraw