COURT FILE AND PARTIES

COURT FILE NO.: CV-10-1944-00

DATE: 2012-09-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VISHWANATH GORD, Plaintiff

AND

NIRVANA FLAVOURS OF INDIA, Defendant

BEFORE: PRICE J.

COUNSEL: Gary A. Bennett, Counsel for Plaintiff

Jerome H. Stanleigh, Counsel for Defendant

HEARD: September 11, 2012

ENDORSEMENT

NATURE OF PROCEEDING

[ 1 ] The defendant employer, Nirvana Flavours of India, in this action for damages for wrongful dismissal and beach of employment contract moved on July 16, 2012 for “a more particularized disclosure and a further amended Affidavit of Documents” from the plaintiff employee, Vishwanath Gord, and to schedule an examination for discovery after receipt of an amended Affidavit of Documents.

[ 2 ] The plaintiff cross-moved on September 5, 2012, for an Order striking the Statement of Defence or, in the alternative, setting a pre-emptory date for examination for discovery of the defendant.

PLEADINGS

[ 3 ] The plaintiff, in this Statement of Claim, alleges that he was dismissed without cause on December 13, 2009, after employment from December 14, 2004 as a chef at the defendant’s restaurant. He claims damages for salary earned from December 14, 2004 to December 31, 2005 in the amount of $48,000.00, payment for overtime worked, amounting to $165,000.00, and vacation pay in the amount of $9,600.00 because “he was not allowed to take time off for vacation during his time working for Nirvana”, and public holiday pay in the amount of $4,800.00 for the holidays he says he was required to work without earning extra pay. Curiously, the plaintiff does not claim unpaid wages during a period of reasonable notice but pleads that “the fact that the defendant denied him his basic minimum entitled to termination pay, severance pay, holiday pay, benefits and vacation pay pursuant to the Employment Standards Act 2000 is evidence of bad faith on the part of Nirvana and this action warrants an award of bad faith damages or punitive damages on both.”

[ 4 ] The Statement of Claim was issued on May 27, 2010, and the defendant delivered a Statement of Defence dated July 21, 2010. In its Statement of Defence, the defendant states, in paragraph 5: “During the first year of his employment, the plaintiff was paid in India, as per his request, until the end of the fiscal year 2004, when he received $8,000.00 from the defendant in Canada. From the year 2005 to December 2009, the plaintiff was paid in accordance with the salary schedule agreed upon.”

[ 5 ] With regard to the plaintiff’s claim for unpaid overtime, the defendant states, in paragraph 7 that “[I]f any overtime was due to the plaintiff, which is specifically denied, then such overtime was paid for by agreement of the parties in the form of return airfare for the plaintiff to and from India, payment of room and board, advances made on salary, and paid vacations above the two weeks per year required under the Employment Standards Act .”

[ 6 ] The defendant, in paragraph 8 of the Statement of Defence, denies that it dismissed the plaintiff and states that the plaintiff “stated that he had to leave the defendant’s employ because his work permit, sponsored by the defendant, could not be renewed after the fourth year.”

[ 7 ] Finally, the defendant states in paragraph 16, that the plaintiff made a claim to the Minister of Labour for unpaid wages, overtime pay owing and CPP but abandoned that claim.

PRODUCTION AND DISCOVERY PROCEEDINGS

[ 8 ] The defendant delivered its Affidavit of Documents April 5, 2011 and the plaintiff delivered his Affidavit of Documents on April 13, 2011. After mediation on June 22, 2011 failed to resolve the dispute, the plaintiff proposed a Discovery Plan on October 20, 2011. The defendant refused the plan and promised, on the same date, to deliver an alternative plan but failed to do so. In his letter dated October 28, 2011, the defendant’s counsel asked the plaintiff to amend his Affidavit of Documents to include, among other documents, a copy of his bank statements and credit card statements from the time of his arrival in Canada to the date of commencement of his claim, copies of his passports from date of entry to Canada to commencement of claim, re-entry visas throughout the relevant period, and a copy of his citizenship card and present work permit.

[ 9 ] The plaintiff did not immediately respond to the defendant’s request but on November 9, 2011 served a Notice of Examination of Examination for Discovery of the defendant on December 6, 2011. On the day before the scheduled examination, according to the affidavit of the plaintiff’s law clerk, Mr. Kaur, sworn September 5, 2012, the defendant’s solicitor’s clerk, Maria, telephone to inform plaintiff’s counsel that Sukki Ghumman, the owner of Nirvana, was out of the country until February 2012 so the examination had to be postponed. Mr. Kaur stated that he immediately telephone Nirvana and asked the receptionist if Sukki was in the restaurant and was told that Sukki was working at Nirvana that day and was not scheduled to be out of the country the following day. The plaintiff’s counsel obtained a Certificate of Non-Attendance on December 6, 2011.

[ 10 ] On December 7, 2011, plaintiff’s counsel served a second Notice of Examination to examine the defendant on January 18, 2012. On December 16, 2011, defendant’s counsel wrote and stated “As previously advised, we are not in a position to examine your client nor have our client examined until we receive a full and complete disclosure. This is in accordance with the new Rules on discoveries. I will send you in the beginning of the week a discovery plain which I would ask that you respond to. If you do not accept the position, kindly advise and I will Motion the Court to compel your chart to produce the documents previously requested in my previous letter dated October 28, 2011, a copy of which is enclosed.”

[ 11 ] Plaintiff’s counsel again did not provide the documents requested and the defendant’s counsel apparently did not deliver a proposed Discovery Plain or bring a motion to compel disclosure. The plaintiff’s counsel therefore obtained a second Certificate of Non-Attendance on January 18, 2012.

[ 12 ] On March 23, 2012, the plaintiff delivered an unsworn Supplementary Affidavit of Documents and requested the defendant’s available dates in May 2012 so that plaintiff’s counsel could schedule discoveries. Defendant’s counsel apparently overlooked the fact that the plaintiff’s Supplementary Affidavit was unsworn and omitted a number of the documents requested by defendant’s counsel in his letter dated October 28, 2011, and re-sent on December 16, 2011. He therefore replied by letter dated April 20, 2012 acknowledging receipt of the Supplementary Affidavit of Documents and providing dates for discovery on May 23, June 4, 5 and 7, 2012. Not surprisingly, plaintiff’s counsel responded the same day enclosing a Notice of Examination for examination for discovery on June 19 and 20, 2012, dates agreed upon between the two solicitors’ respective law clerk and student. On April 25, plaintiff’s counsel sent a further letter confirming the parties’ agreement to re-schedule the discoveries for July 9 and 10, 2012.

[ 13 ] A month later, on May 29, 2012, the defendant’s counsel apparently noticed the omission in the Supplementary Affidavit of Documents he had received and wrote a further letter to plaintiff’s counsel re-stating the position he had taken on December 16, 2011, and refusing to engage in discoveries until he had received “Complete financial information from your client on his business affairs as well as a full copy of his Indian passport during the relevant period of time.” He again referred to his letter dated October 28, 2011 as outlining the documents he required. He stated that once he received the material requested, he would fix an early discovery date. He continued, “If we do not receive the material requested in short order, we will motion the Court for direction.”

[ 14 ] The plaintiff, once again, did not provide the documents requested. Instead, plaintiff’s counsel obtained a third Certificate of Non-Attendance on July 9, 2012, notwithstanding a further letter from defendant’s counsel on June 29, 2012, stating that he would not be producing his client and requesting dates in July when he would be available to argue a motion for a better Affidavit of Documents. On July 9, 2012, after obtaining the Certificate of Non-Attendance, plaintiff’s counsel wrote a further letter to defendant’s council asking for the relevance of the documents requested. He repeated this request on July 11, 2012.

APPLICABLE LAW

[ 15 ] Rule 30.06 of the Rules of Civil Procedure [1] provides:

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(a) order cross-examination on the affidavit of documents;

(b) order service of a further and better affidavit of documents;

(c) order the disclosure or production for inspection of the document, or part of the document, if it is not privileged; and

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

[ 16 ] Rule 30.08 provides, in part:

30.08(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules…, the court may,

(a) revoke or suspend the party’s right, if any, to initiate or continue an examination for discovery;

(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant; and

(c) make such other order as is just.

[ 17 ] Rule 34.15 provides, in part:

34.15(1) Where a person fails to attend at the time and place fixed for an examination in the notice…, the court may,

(b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence;

(d) make such other order as is just.

POSITIONS OF THE PARTIES

[ 18 ] The Plaintiff asserts that the Defence should be struck for the following reasons:

(a) The defendant failed to attend on three consecutive dates for examination pursuant to Notices of Examination that had been served on it;

(b) The defendant did not move promptly for an Order compelling the plaintiff to provide the further Supplementary Affidavit of Documents he now seeks after its counsel’s request dated October 28, 2011 went unanswered;

(c) The defendant’s counsel provided false information as an excuse for its representative’s failure to attend the first scheduled Examination for Discovery on December 6, 2011;

(d) The defendant’s counsel failed to examine the unsworn Supplementary Affidavit of Documents received from Plaintiff’s counsel on March 23, 2012, and or make prompt objections to its deficiencies;

[ 19 ] The Defendant submits that the motions today were precipitated by the Plaintiff’s failure to respond appropriately to Defendant’s counsel’s letter dated October 28, 2011, which requested the production of documents clearly relevant to the issues raised in the pleadings, and instead delivered successive Notices of Examination and demanded explanation of relevance that should have been obvious.

ANALYSIS

[ 20 ] The Plaintiff asserts in his Statement of Claim that he was not paid wages for his first year of employment and was not paid for overtime thereafter, and was not paid vacation pay. The Defendant states in its Statement of Defence that it paid the Plaintiff’s first year’s wages into his account in India and paid his later years’ wages in accordance with the wage schedule agreed upon. It states that it paid overtime by buying tickets for the plaintiff to fly to India and paid his vacation pay.

[ 21 ] In the light of these pleadings, there can be no doubt as to the relevance of the Defendant’s request for the Plaintiff’s bank and credit card statements and for the pages of his passport.

[ 22 ] The Plaintiff states that he was dismissed and the Defendant states that the Plaintiff quit because his work permits could not be extended beyond four years. In the light of these pleadings, there can be no doubt as to the relevance of the Plaintiff’s visas, work permits or citizenship card. These documents should have been produced voluntarily without the need for a motion.

[ 23 ] That said, the Defendant’s failure to do promptly what he said he would do on October 28 and December 16, 2011, namely, deliver an alternative Discovery Plan or bring a motion before the Court to compel production of the documents it required, resulted in the delay of the proceeding for almost a year and contributed to unnecessary costs.

CONCLUSION AND ORDER

[ 24 ] Based on the foregoing, it is ordered that:

1. The Plaintiff shall produce, by September 30, 2012, the documents requested by the Defendant’s solicitor in the letter dated October 28, 2011; and a sworn Supplementary Affidavit of Documents, and a new Discovery Plan, after consulting Defendant’s counsel as to his availability.

2. Examination for Discovery shall be completed by December 4, 2012.

3. Undertakings shall be complied with by December 30, 2012.

4. Motions for non-compliance shall be heard by January 15, 2013.

5. The action shall be set down for trial by January 30, 2013.

6. The parties shall attend at the Assignment Court in February 2013 to set a trial no later than the blitz sittings of May 2013.

7. In the event of non-compliance with this timetable, either party has leave to move promptly for the appropriate remedy.

8. There shall be no costs paid to either party for these motions.

PRICE J.

Date: September 11, 2012

COURT FILE NO.: CV-10-1944-00

DATE: 2012-09-11

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: VISHWANATH GORD, Plaintiff AND NIRVANA FLAVOURS OF INDIA, Defendant ENDORSEMENT Price J.

Released: September 11, 2012

[^1]: R.R.O. 1990, Reg. 194