Court File and Parties

COURT FILE NO.: CV-22-677855 DATE: 2023 08 25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LARA MAALOUF, Plaintiff - and - BAYER INC., Defendant

BEFORE: Associate Justice Todd Robinson

COUNSEL: A. Miedema, for the defendant (moving party) C. Justice, for the plaintiff

HEARD: April 25, 2023 (by videoconference)

Reasons for Decision (Refusals and Further Productions)

[1] This is a wrongful dismissal action arising from Lara Maalouf’s termination of employment for her failure to comply with the COVID-19 vaccination policy instituted by her former employer, Bayer Inc. There is no dispute that Ms. Maalouf breached the policy by failing to provide proof of COVID-19 vaccination or proof of exemption to vaccination by the compliance deadline set out in the policy. As a result, Bayer Inc. terminated her for cause.

[2] On this motion, the defendant seeks an order compelling the plaintiff to re-attend at examinations for discovery to answer questions argued to have been improperly refused about her vaccination status and her views on vaccination, as well as directing a further and better affidavit of documents.

[3] I am granting the motion, in part. I find that the refused questions are relevant based on the pleadings and should be answered. Whether or not the answers are admissible at trial is not before me and is a matter to be addressed with the trial judge. Bayer Inc. has not, though, met its onus of establishing the existence of relevant and unproduced documents in Ms. Maalouf’s possession, control, or power. I am accordingly dismissing the request for a further and better affidavit of documents.

Analysis

Relevance of Refused Questions

[4] Ms. Maalouf refused six questions during her discovery that are the subject matter of this motion. They fall into two categories: (i) Ms. Maalouf’s vaccination status with respect to a COVID-19 vaccine and other vaccines, and (ii) Ms. Maalouf’s research and considerations in her decision not to obtain a COVID-19 vaccine.

[5] Subrule 31.06(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) provides that 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. The scope of an examination for discovery is defined by the pleadings. Discovery questions must be relevant to the issues as defined by those pleadings: Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 129.

Questions on vaccination status

[6] Ms. Maalouf has agreed to answer the refused question on whether she has received a COVID-19 vaccination since termination. The two remaining refusals deal with whether Ms. Maalouf has received any other vaccinations prior to and since termination. I find that these are relevant questions based on allegations in the statement of defence.

[7] In the statement of defence, at paras. 52-53, Bayer Inc. pleads, in part, as follows:

52. In the face of overwhelming evidence that vaccination is safe and effective, the Plaintiff decided not to get vaccinated. […] She did not have a reasonable basis for declining vaccination. […] As such, Bayer pleads that even if Bayer did not have just cause to terminate the Plaintiff’s employment (which Bayer denies), the Plaintiff, by failing to get vaccinated, breached her duty to mitigate her damages and therefore is not entitled to any damages. She could have saved her job and continued working for Bayer had she made the reasonable decision to get vaccinated.

53. Bayer also pleads that the Plaintiff has failed to take adequate steps to mitigate her damages appropriately after her employment with Bayer ended, and puts the Plaintiff to the strict proof thereof. Bayer specifically states that given the Plaintiff's skill set and experience, and the current worker shortage in Ontario, the Plaintiff is highly re-employable and should be able to find a comparable position.

[8] Bayer Inc. has expressly pleaded that Ms. Maalouf decided not to get vaccinated, had no reasonable basis for declining vaccination, and failed to mitigate her losses by not getting vaccinated. Ms. Maalouf has not moved to strike the above paragraphs, or any portions of them. They are thereby appropriately considered when I am assessing relevance of the questions asked.

[9] Ms. Maalouf has agreed to answer whether she has received a COVID-19 vaccination since termination. Only the questions on other vaccinations remain in dispute. I am satisfied that whether Ms. Maalouf has received other vaccinations both prior to and since termination is relevant to Bayer Inc.’s pleading that she did not have a reasonable basis for declining vaccination. I accept Bayer Inc.’s argument that Ms. Maalouf’s motives in breaching the company’s vaccination policies are not clearly irrelevant. Notably, although an older case, as held in Doyle v. London Life Ins. Co., at para. 28, motive is sometimes plainly relevant in cases where the court assesses dismissal for an employee’s knowing breach of a company policy. As MacDonald J.A. put it, “A corrupt motive may well tip the scales against an employee. A pure motive ought to be weighed in [the employee’s] favour.”

[10] Whether Ms. Maalouf’s decision not to obtain a COVID-19 vaccine is specific to COVID-19 vaccines or is a broader view of vaccinations is, in my view, relevant to whether she did have a “reasonable basis for declining vaccination”. Bayer Inc. is entitled to explore that issue on discovery, regardless of whether or not Ms. Maalouf ultimately challenges the admissibility or use of her answers in evidence at trial.

[11] I reject Ms. Maalouf’s submission that I should have regard for the fact that Bayer Inc.’s COVID-19 vaccination policy does not allow for any reasonable excuse for disobedience with the policy. She submits that the reasons for breaching the policy are thereby immaterial. Whether or not Ms. Maalouf’s reasonableness in declining to comply with the policy is a genuine issue for trial is not before me. It is not appropriate for me to base my decision on what I view (or am convinced to view) as the actual issues for trial or my views on potential admissibility or materiality of evidence at that trial. I am not the trial judge. This is a procedural discovery motion dealing with relevance for discovery purposes based on the pleadings. In my view, the questions are relevant based on the pleadings as they stand. All three questions on vaccination status shall accordingly be answered.

Questions on research and considerations about vaccination

[12] Three questions were refused dealing with (i) the data and research looked at or done by Ms. Maalouf before coming to her decision not to obtain a COVID-19 vaccination, (ii) what she did to assess and come to her own conclusion on whether there was enough data or research on the vaccine, and (iii) whether she considered public health recommendations when making her decision. I find that these are all relevant questions.

[13] Much for the same reasons discussed above, I find the questions to be relevant to the allegation that Ms. Maalouf “did not have a reasonable basis for declining vaccination.” I reject Ms. Maalouf’s argument that they are a “fishing expedition.” In my view, what research, considerations, and recommendations, if any, informed Ms. Maalouf in reaching her decision are relevant to the pleaded issue of whether Ms. Maalouf did or did not have a reasonable basis to decline vaccination.

[14] Both parties made submissions about what the trial judge would or would not want to know about Ms. Maalouf’s decision in reaching a decision. I need not address those arguments. My focus on this motion is limited to whether the questions asked are relevant based on the existing pleadings, not what a trial judge may or may not want to know. The questions are relevant to the pleadings as they stand. All three questions shall accordingly be answered.

Further and Better Affidavit of Documents

[15] Bayer Inc. also seeks a further and better affidavit of documents from Ms. Maalouf to include written communications relating to her beliefs and views on COVID-19, such as vaccination, masking, social distancing, and public health guidelines.

[16] No case law was tendered by either party on the requirements for obtaining a further and better affidavit of documents. At the hearing, I referred counsel to my decisions in Sarta v. Mazo, 2021 ONSC 5660 and Galea v. Best Water Limited, 2019 ONSC 7213, both of which dealt with ordering a further and better affidavit of documents. I requested specific submissions on the applicable considerations.

[17] In my view, the case law supports four primary considerations to be assessed on a motion for a further and better affidavit of documents. They are as follows:

(a) Parties are generally left to make the initial decision about what documents to produce themselves;

(b) When missing documents are alleged, the moving party must prove that the documents exist on a balance of probabilities before an order is made that they be disclosed in a further and better affidavit of documents;

(c) There must be evidence that specific documents exist that have not been produced. Evidence that amounts to intuition, speculation and guesswork is insufficient. However, the level of proof required must take into account that one party has access to the documents and the moving party does not; and

(d) Simply identifying the existence of documents is not enough. The missing documents must also meet the test of relevance under the Rules and must also satisfy the proportionality requirements of rule 29.2.03.

[18] Bayer Inc. has put forward an Instagram post from November 15, 2022 as evidence of the existence of unproduced documents that express Ms. Maalouf’s views on COVID-19. No other evidence has been tendered. That post was made two days before Ms. Maalouf was examined for discovery and nearly two months after Ms. Maalouf’s affidavit of documents was served. It was not a document that existed at the time of production. Bayer Inc. essentially argues that the Instagram post supports a likelihood of other posts and communications. No evidentiary foundation for that assumption or inference is in the record before me. Bayer Inc. has not met its evidentiary onus.

[19] As part of the discovery process, it is open to Bayer Inc. to examine Ms. Maalouf on her affidavit of documents and ask Ms. Maalouf questions about documents that may exist and have not been produced. That has not yet been done. In my view, absent further evidentiary foundation for unproduced documents containing Ms. Maalouf’s views on COVID-19 beyond a single Instagram post, there is no basis to order a further and better affidavit of documents.

Costs

[20] There has been some divided success on this motion. Bayer has been entirely successful in its motion to compel answers to the refused questions. However, Ms. Maalouf has been successful in her opposition to a further and better affidavit of documents.

[21] In my view, although not entirely successful, Bayer Inc. is still entitled to its costs of the motion in a reduced amount. The refusals portion of the motion was more substantive and was the primary focus of the parties’ facta and oral submissions. Ms. Maalouf’s success on the production dispute is not such that I find it fair and appropriate to deny Bayer Inc. any costs.

[22] Bayer Inc. seeks its partial indemnity costs of the motion and costs thrown away in the amount of $6,424.05, including HST and disbursements. That figure includes costs thrown away from the discovery. If successful, Ms. Maalouf was seeking her partial indemnity costs of the motion in the amount of $2,711.07, including HST and disbursements. Ms. Maalouf submitted that, if Bayer Inc. was entirely successful, then its costs should be no greater than her own costs claim.

[23] Dealing first with costs thrown away, I am not satisfied that a cost award from the prior examination is appropriate at this time. Both subrule 34.14(2) and 34.15(1)(a) of the Rules permit me to order costs thrown away and/or costs of the continued examination. However, costs are always discretionary and I am not convinced that I should exercise my discretion to do so in this case.

[24] In my view, it was appropriate for Bayer Inc. to adjourn the examination to bring this motion, but that does not mean there should be an order for costs thrown away. It was open to Bayer Inc. to continue its examination on all other matters, leaving aside only the vaccination-related questions to which Ms. Maalouf was objecting. It opted not to do so. I have made no finding that Ms. Maalouf’s conduct during the examination was improper. Although I have found that her objections to the vaccination-related questions should not be sustained, I appreciate the sensitivity of personal health information and am not prepared to find that, although unsuccessful, Ms. Maalouf’s objections were without any legitimate, arguable basis.

[25] There will no doubt be some redundant time spent by Bayer Inc. when preparing for the continued examinations. However, in the circumstances of this case, I think the actual impact is better assessed after the fees and disbursements have been incurred. I am not in a position to agree that the claimed five hours of time is an accurate assessment of preparation time that was lost or will be duplicated. It follows that costs of Ms. Maalouf’s examination for discovery are more properly determined in the ordinary course at the conclusion of litigation. At that time, it will be open to Bayer Inc. to argue that it should recover costs of the examination for discovery, in whole or in part, in any event of the cause. Costs of the examination for discovery shall accordingly be reserved to disposition of this action.

[26] Removing those costs from Bayer Inc.’s costs claim, and considering the factors in subrule 57.01(1) of the Rules, including the extent of divided success, I find that the fair and appropriate amount of costs that Ms. Maalouf should pay to Bayer Inc. for this motion is $2,000.00, including HST and disbursements, on a partial indemnity basis.

Disposition

[27] For the above reasons, Bayer Inc.’s motion is granted, in part. Ms. Maalouf shall re-attend at a continued examination for discovery to answer the six refused questions and complete her examination for discovery on a date to be agreed by the parties acting reasonably within sixty (60) days of this order, unless the parties agree to a later date. The balance of the motion is dismissed. Ms. Maalouf shall pay to Bayer Inc. costs of this motion fixed in the amount of $2,000.00, including HST and disbursements, payable within forty-five (45) days. This order is effective without further formality.

ASSOCIATE JUSTICE TODD ROBINSON DATE: August 25, 2023