ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-436717
DATE: 20130424
BETWEEN:
John McCready
Plaintiff
– and –
De Dwa De Dehs Ney>s Aboriginal Health Centre
Defendant
Gordon Meiklejohn, for the Plaintiff
Jennifer M. Fantini and Maria Gergin, for the Defendant
HEARD: April 17-18, 2013
Morgan J.
[1] What rights does a non-exclusive consultant retained on a six-month contract have, if he is terminated after the first week of work?
I. The Consulting Contract
[2] The Plaintiff is a social worker by profession and a community advisor and research consultant. He has many years’ experience working with aboriginal communities in Canada, among other clients.
[3] The Defendant is a non-profit organization that aims to provide culturally appropriate health care and health-related advocacy services to a First Nations, Métis and Inuit clientele. Its focus is on the health needs of the urban aboriginal community in the cities of Hamilton and Brantford, Ontario.
[4] In 2009, the Defendant embarked on a research project funded by the Province called “Our Health Counts”. The project, which investigated and collected information relating to aboriginal health care issues, was conducted in conjunction with the Ontario Federation of Indian Friendship Centres and the Centre for Research on Inner City Health at St. Michael’s Hospital. The background materials for the project that are in the record explain that it was designed to reflect a First Nations’ world view and to ensure that the principles and methodology of the research “come from the people”. It is therefore a scientific endeavor with a distinctively human rights orientation. As the Our Health Counts training materials state: “[t]he cultural framework of this project was rooted in the concept of self-determination and inherent rights”.
[5] St. Michael’s Hospital’s role was to ensure that the health data being collected was relevant to wider health policy issues, while the Defendant was designated as the organization responsible for conducting surveys and collecting the information from the community. The entire project was under the governing umbrella of a council composed of experts, government appointees, and representatives of the participating organizations.
[6] As the front line organization, the Defendant was responsible for hiring the investigators and Research Coordinator that would collect the required data; and the executive director of the Defendant, Chester Langille, was in turn tasked with hiring those personnel. Everyone agrees that Mr. Langille had the authority to hire the investigators and the Research Coordinator for the Our Health Counts project.
[7] The project was supposed to begin in April 2009, but due to a variety of issues it was late getting off the ground. Mr. Langille testified that in the spring or early summer of 2009 he had hired a Research Coordinator to oversee the investigators and the collection of data. That person was in Australia, but at some point toward the end of the summer she apparently withdrew from the job and took up another position elsewhere.
[8] This loss of the Research Coordinator put the Defendant in a difficult position. The project was already late getting underway, and the training session for the investigators and the Research Coordinator was set to begin at the beginning of October.
[9] All of the witnesses agree that Research Coordinator was a senior position that required a rather specialized set of skills. The project entailed a new methodology of respondent-driven sampling in an attempt to increase the uptake by community members to the surveys being conducted. As Conrad Prince, the point person for St. Michael’s Hospital’s role in the project, described it in his testimony, the investigations were designed to overcome the “hidden minority” aspect of urban aboriginal people by collecting information in a way that gives the community itself the “ownership, control, access, and possession” of the data.
[10] In September 2009, a member of the project’s governing council referred Mr. Langille to the Plaintiff, whom she knew had extensive experience working with aboriginal communities. Mr. Langille contacted the Plaintiff by telephone, and after a number of messages back-and-forth they finally touched base with each other on September 23, 2009. The Plaintiff testified that he was out of town at the time, but that the conversation between him and Mr. Langille lasted somewhere around 15 minutes.
[11] Mr. Langille agreed with the Plaintiff that they had a single phone call in which they discussed the project and the Research Coordinator position. They both testified that the Plaintiff was to be hired not as an employee of the Defendant but as an independent consultant. They also agreed that they discussed the $55,000 budget for the Research Coordinator position and the six month time frame for the project. Furthermore, they both agreed that although the consulting contract would ultimately be put in writing and signed by both parties, the Plaintiff would commence work with a training session at the Defendant’s premises on October 1st.
[12] The Defendant’s position in this action is that the discussions between the Plaintiff and Mr. Langille were preliminary discussions, and that no firm agreement was ever struck between them. The Plaintiff’s position is that although there were still certain terms to be discussed before the contract was reduced to writing, these were minor details such as reimbursement for commuting expenses to Hamilton; the Plaintiff viewed the September 23rd telephone conversation as having ended with an agreement that he was hired.
[13] I find it eminently credible that the parties struck a firm agreement in their telephone conversation of September 23, 2009. On September 25th, Mr. Langille sent a memo to the governing council for the project reporting that he had hired a Research Coordinator. On September 27, 2009, upon his return to Toronto, the Plaintiff sent an email to Mr. Langille confirming their agreement and telling him that he was looking forward to starting his work on the project on October 1st.
[14] When the Plaintiff arrived at the Defendant’s premises on October 1st, Mr. Langille was away from work on sick leave. However, the Plaintiff was greeted by the Defendant’s acting executive director, Dennis Compton, who introduced him to the other investigators and the trainers as the new Research Coordinator.
[15] The Defendant was fully expecting him to start his training sessions for the project that very day. The human resources person at the Defendant’s offices, Tara Campbell, asked the Plaintiff to fill out new employee forms; he did not do so as he explained to her that he had been brought on as an independent contractor rather than as a full time employee. It was obvious, however, that although she did not have the details right, she had been advised in advance that he was hired.
[16] Most importantly, Mr. Langille himself confirmed in his testimony that he had concluded a verbal agreement with the Plaintiff. While he stated that he anticipated that the agreement would later be written and signed, he left little doubt that the hiring of the Plaintiff was firm in his mind. The important terms of the agreement – the nature of the Our Health Counts project, the Research Coordinator tasks, the duration of the contract, and the compensation – were all agreed to by the two of them on the phone. In cross-examination, Mr. Langille confirmed that the arrangement with the Plaintiff was firm:
Q. He signed up for that job [Research Coordinator] and you hired him for that job?”
A. Yes.
[17] Mr. Langille further testified that shortly after the telephone call with the Plaintiff he advised Mr. Prince that he hired a Research Coordinator. He indicated that Mr. Prince had expressed some concern about a consultant taking on this role rather than a full-time employee, but that he had no strong objection.
[18] The one area of contention was that the Plaintiff had advised Mr. Langille that he was already committed to be away from Toronto for six weeks during the six month project – one week in November 2009 related to one of the Plaintiff’s other consulting contracts, and five weeks in January-February 2010 in Burundi (the country of the Plaintiff’s birth) teaching at Hope Africa University. Mr. Langille agreed that the Plaintiff had informed him of these commitments up front and that he had agreed to the Plaintiff taking this time off. As Mr. Langille put it, “it wasn’t a deal breaker and we would be able to work it out.”
[19] Although Mr. Prince professed to be surprised at the length of these absences, he was also aware of the Plaintiff’s travel commitments. He testified that when Mr. Langille told him he had hired the Plaintiff he also advised him that there was some “time off that needed to be accommodated and that he would be sending me a strategy as to how to deal with that.” For his part, the Plaintiff testified that he understood that Mr. Langille would be hiring an assistant Research Coordinator, and that the assistant would fill in for him during the time he was away.
[20] Unfortunately, Mr. Langille’s sick leave extended for some time. Ultimately, he did not return to work at the Defendant before taking another job himself. As a result, the Plaintiff never met with him again and never had the opportunity to have his retainer reduced to a written document.
[21] Nevertheless, it is clear to me that Mr. Langille, as the duly authorized officer of the Defendant, had hired the Plaintiff as Research Coordinator on a consultancy basis. This was not, as Defendant’s counsel submits, a “contract to make a contract” and thus no contract at all; it was a firm agreement to retain the Plaintiff.
II. Terminating the Plaintiff’s Contract
[22] The Plaintiff attended at the Defendant’s offices on October 1, 2009 and commenced his training session. As indicated, he was introduced all around as the new Research Coordinator by Dennis Compton. Mr. Compton had been Mr. Langille’s assistant and, in Mr. Langille’s absence, was acting executive director of the Defendant.
[23] The week-long training session was organized and administered by Mr. Compton, on behalf of the Defendant, and by Mr. Prince, on behalf of St. Michael’s Hospital. The Plaintiff testified that he had six days of training – four in day-long sessions at the Defendant’s premises, and two at home reading and preparing materials that were distributed to him and the project investigators. The intensive training program was a necessary part of the project, as the methodology of the data collection reflected the latest and most sophisticated thinking about aboriginal health and sociological issues.
[24] On Thursday, October 8, 2009, the Plaintiff had to take a break from the training sessions at 2:00 p.m. in order to chair a conference call for one of the other consulting projects he was working on. He testified that he had informed everyone about this call, and that Ms. Campbell, the Defendant’s human resources manager, had arranged for him to have use of a boardroom and speaker phone for this purpose. The Plaintiff testified that this call was an important one to his other project, and that it required him to lead a large number of professionals through a pre-arranged agenda dealing with problems of addiction and related research.
[25] About 15 minutes prior to the commencement of his conference call, he was asked by Mr. Compton and Mr. Prince to join them in a meeting. He said that he would be glad to, but reminded them that he would have to leave shortly in order to get onto the call he was chairing.
[26] The meeting turned out to be a difficult one. It was led by Mr. Prince, who expressed his opposition to the Plaintiff’s planned periods of absence from the project. During the course of their discussion, Mr. Prince informed the Plaintiff that since he had no written contract, he had no contract at all. According to the Plaintiff, he was told, “We need a full time community research coordinator”, to which he responded, “I am your full time community research coordinator”. Mr. Prince then put to him an ultimatum: full time, every day through the entire 6 months, or nothing at all.
[27] The Plaintiff testified that he explained to Mr. Prince that he was committed to teaching in Africa in January and that he could not back out of that responsibility. He also indicated that Mr. Langille had told him there would be an assistant to fill in during his absence, but Mr. Prince apparently knew nothing of that. Mr. Prince testified that he offered the Plaintiff to stay on with his stipend reduced on a pro rata basis reflecting the time he would be away, but the Plaintiff denies that such an offer was ever made to him. In any case, the Plaintiff insisted that he had a verbal agreement with Mr. Langille and told Mr. Prince and Mr. Compton that he expected them to honour that agreement.
[28] By the time the Plaintiff got back to the boardroom to get onto the conference call, he was about ten minutes late. He testified that he was flustered and embarrassed, as the participants in that call were colleagues and clients (and potential clients) that were very important to him. He said that it took him some time to collect himself and to start to focus on the conference call’s agenda.
[29] About 20 minutes into the call, Mr. Compton walked into the boardroom and told the Plaintiff to leave the call and to come with him to another room. The Plaintiff testified that he gestured to Mr. Compton that he was unable to do that as he was the chair of the call. Mr. Compton was insistent, and curtly told the Plaintiff, “You have no choice.” The Plaintiff therefore excused himself from the phone call, which continued in his absence, and followed Mr. Compton out of the room.
[30] Mr. Compton then told the Plaintiff that they needed a full-time coordinator and that they were letting him go. The Plaintiff testified that he suggested taking the matter to the project’s governing council for their input, but that at that point Mr. Compton called in Mr. Prince who rejected this idea. Mr. Compton’s response was to cut off any further conversation with the Plaintiff, telling him: “Bill us for your time.”
[31] The Plaintiff then returned to the conference call. He completed it, but explained at trial that he was not in a good state of mind to do it. “I did the best I could to catch up to the call and to lead it”, he said, but it was very difficult. The call lasted another 30 minutes or so. The Plaintiff testified that it was a painful experience to have been summarily dismissed in this way and then to have to recover composure and to function in a professional manner for the duration of the call.
[32] When the call was done, the Plaintiff gathered his materials together, left the boardroom, and saw that the premises were strangely vacant. It had been his intention to thank Ms. Campbell for letting him use the boardroom, but there was no one there at all. Mr. Compton’s whereabouts were unknown. All of the other investigators, trainers, and office staff had apparently left for the day. When asked about this in cross-examination, Mr. Prince stated that he was unaware of who was in the office and who wasn’t, and that he had taken himself to dinner alone. It was, according to the Plaintiff, somewhere around 4:00 in the afternoon.
[33] The Plaintiff testified that it felt like they had deliberately abandoned the premises so that he would see and speak with no one when he came out of the boardroom. As he described it, the reaction to him went well beyond a mere financial or logistical discomfort with his taking time off next January; it was as if he were being shunned.
[34] The Plaintiff testified that he had never been treated this way, and that he was very upset afterwards. That is certainly believable. Mr. Prince was businesslike in his demeanor, but deliberate and unsympathetic to the position the Plaintiff was put in by having been retained by Mr. Langille who then vanished without following up on the agreement he had struck.
[35] For his part, Mr. Compton’s conduct was rude and abrupt. I note that Mr. Compton was not produced as a witness by the Defendant at trial. Mr. Langille testified that Mr. Compton is now retired, but there was no suggestion that he was unavailable or unable to attend at court. I surmise that had he appeared at trial, Mr. Compton’s testimony would have only confirmed that he was callous and dismissive of the Plaintiff.
[36] The Our Health Counts project went on without the Plaintiff. Another Research Coordinator was hired a month or so later. Unlike the previous two times, Mr. Prince took a hands-on approach to the hiring process, meeting the new applicant and approving the decision to hire her.
[37] In cross-examination, Mr. Prince confirmed that this time around he confined the search to aboriginal candidates only. As he explained it, “[a]boriginal people know their social networks and their community better than most non-aboriginal people.” He did concede that although the Plaintiff is a non-aboriginal person, he had the experience and the qualifications for the Research Coordinator position.
[38] I pause here to note that the Plaintiff strikes me not only as a very honest witness, but as a person with a strong sense of ethics. His career is devoted to service in disadvantaged communities in Canada, he is dedicated to teaching on a regular basis in Africa where he receives no remuneration, and he comports himself with a kind of dignity that conveys that he sets high standards for himself and others. His testimony at trial was imbued with a certain sense of mission in the way that he approaches his work and deals with people.
[39] In a telling moment, the Plaintiff testified that he tried to gently suggest to Mr. Prince and Mr. Compton that the central message of the training he had been receiving for the project was respect – i.e. the research team must strive to treat community members with utmost respect – and that he would also expect to be treated with respect by the leaders of the project. He made this point in a straightforward way, with no sense of irony or cynicism. In my view, he was not accorded the respect he deserved.
III. Damages
[40] Both parties agree that the Plaintiff was not hired as the Defendant’s employee. Accordingly, this is not a case of wrongful dismissal.
[41] The Plaintiff was retained by the Defendant as an independent and non-exclusive consultant. He was able to serve other paying clients during the time of his contract with the Defendant, and, indeed, he did continue to serve other clients. He was chairing a conference call for a paying consulting contract with another client at the time he was abruptly terminated by Mr. Compton. He testified that he had at least one other contract on the go as well during this time.
[42] Counsel for the Plaintiff submits that in the absence of any termination provision in a consulting contract such as this, a consultant cannot be terminated without the contract price being paid in full. Accordingly, the Plaintiff seeks the full $55,000 that he was to get for providing Research Coordinator services over the six months of the project.
[43] I asked Plaintiff’s counsel if he had any authority for the full contract price being the appropriate measure of damages, and he had none. I am not surprised, as I can find none either.
[44] As a hypothetical analogy, I put to Plaintiff’s counsel that the one consulting agreement with which everyone in the courtroom is familiar – the lawyer’s retainer – does not typically work that way. That is, if a client terminates his or her lawyer, one would expect the lawyer to get paid for work done to date but not for work that was expected to be done but that had not yet been reached. Counsel contends that the lawyer’s retainer is a different kind of consulting contract, as it is for an indefinite period of time (until the case or transaction is over), whereas the Plaintiff’s consulting contract was for a fixed period.
[45] With respect, that strikes me as a distinction without a difference. One could retain a law firm to review one’s business dealings for the next six months, or one could retain a law firm to review one’s business dealings without putting a fixed termination date on the retainer. Either way, the client can generally end the relationship at will; the client’s obligation is to pay for services rendered, not services foregone.
[46] It is clear from judgments across the country that a true independent contractor like the Plaintiff, who is free to pursue other contracts during the course of his retainer, is treated differently upon termination than an employee. Whereas an employee deserves reasonable notice or pay in lieu of notice, “absent a provision to the contrary, a contract for services by an independent contractor can be terminated at will and without notice.” Drew Oliphant Professional Corporation v Harrison, 2011 ABQB 216, at para 72 (Alta QB).
[47] Under the circumstances, that was not an unfair arrangement for the Plaintiff. As the Court of Appeal put it in Aqwa v Centennial Home Renovations Inc., [2003] 20878, at para 4, where the termination without notice provision was spelled out in the contract:
Finally, when the terms of the contract are viewed in their entirety, we see nothing unfair in those terms. Several terms operated to the benefit of the respondent [i.e. the contractor]. He could pursue other work as long as it did not conflict directly with the products sole by the appellant, he could work at his own pace and on his own hours, and he could sever his connection with the appellant at any time he saw fit without penalty.
[48] Much the same can be said of the arrangement in the present case. The Plaintiff could continue serving other clients even while retained to work “full time” on the Defendant’s project, and he could do so from the Defendant’s premises if it did not otherwise interfere with the Defendant’s work. Moreover, the Plaintiff and Mr. Langille both testified that the Plaintiff could take off six weeks out of a six month project without forfeiting any income. The lack of any notice provision may work to the Defendant’s benefit, but overall the contract was not unfair to the Plaintiff.
[49] In my view, the Plaintiff is entitled to compensatory damages, but only on a quantum meruit basis. The Plaintiff worked for six days on the Defendant’s project. As the Supreme Court of Canada has said in its leading quantum meruit decision, even if damages for the entire contract are unwarranted, “the services were not given gratuitously but on the footing of a contractual relation: they were to be paid for.” Deglman v. Guaranty Trust Co. of Canada and Constantineau, 1954 2 (SCC), [1954] SCR 725, at 728.
[50] The question here is what value to put on the Plaintiff’s work. The Plaintiff’s six days on the job comprised his training period. In one sense these were unproductive days for the Defendant; they were designed as an investment in the Plaintiff’s future productivity, but not as days that actually advanced the data collection project.
[51] It seems to me that the Plaintiff is justified in having “quantified his monetary award using the measure applied in contractual quantum meruit cases, with its emphasis on the cost of those services, rather than the benefit to their recipient…” Infinity Steel Inc. v B & C Steel Erectors Inc., 2011 BCCA 215, at para 13. The Plaintiff devoted six working days to the Defendant, engaging in precisely the activity that the Defendant designed for him during those days. The value of this work time reflects the cost to the Plaintiff of the Plaintiff’s time, and not its ultimate value to the Defendant.
[52] Several days after his termination, the Plaintiff provided the Defendant with an invoice for services rendered. Among other things, Defendant’s counsel complains that in this invoice the Plaintiff used his normal per diem billing rate of $840/day rather than the contractual rate of $55,000 divided by the number of days in six months (which the Plaintiff concedes would be just under half of his usual daily rate).
[53] Having spent the entire case denying that there was any contract at all, it does not sit well for the Defendant to suddenly invoke the contractual fee in knocking down the Plaintiff’s bill for services. More importantly, the Plaintiff understandably states that the discounted contract rate was in return for six months’ worth of work, not for six days’ worth. As the British Columbia Supreme Court put it in Stevenson v Katz, 2008 BCSC 565, at para 38, “‘[m]arket value’ must take into account the context in which the service is provided.” A bill at the Plaintiff’s usual daily rate for the days that he worked seems appropriate and recoverable.
[54] The Plaintiff has also included in his invoice a bill for six extra days. These represent days that he had set aside for work on the Defendant’s project at the time he was terminated, but which were ultimately not used for the Defendant’s work.
[55] It is trite to say that quantum meruit represents “the origin of the fee-for-services award”, Kerr v. Baranow, 2011 SCC 10, [2011] 1 SCR 269, at para 74. It is distinct from a damages calculation that takes into account loss of expected fees where the services have not been rendered. The Plaintiff’s fees for services rendered are limited to the six days that he actually spent working on the project. The fees for the extra days planned but not worked are not recoverable on the basis discussed here.
[56] In addition, the Plaintiff claims exemplary, aggravated and punitive damages of $100,000.
[57] The Plaintiff testified that he was, and continues to be, quite upset at the severe way he was treated by the Defendant. He did not present any medical evidence of mental distress, but he stated emphatically that in the context of a respectful work environment the degrading treatment he received at being ordered out and fired in the middle of a teleconference was maximally distressing. Likewise, he presented no evidence that his poor performance on the conference call, which resulted directly from the abrupt nature of his treatment by the Defendant, caused him to lose specific clients or consulting opportunities, but again he was emphatic that he values his professionalism and that he was severely undermined by this treatment.
[58] Given the lack of evidence of personal losses (beyond the quantum meruit award), there is no provable claim here for aggravated damages. However, the Plaintiff was dealt with in an unduly harsh and, frankly, reprehensible way. In the employment setting, that kind of conduct could lead to substantial punitive damage awards. See, Kelly v. Norsemont Mining Inc., 2013 BCSC 147, at para 119.
[59] This case, as discussed above, is not strictly speaking an employment case, and the same duties of good faith and fair dealing that protect employees may not apply to consultants. Nevertheless, punitive damages are also available in a breach of contract claim. Royal Bank of Canada v. W. Got & Associates Electric Ltd., 1999 714 (SCC), [1999] 3 SCR 408, at para 26.
[60] There is substantial evidence here that the Defendant’s conduct was planned, deliberate, and done in willful blindness of its impact on the Plaintiff. Mr. Compton, in particular, ordered the Plaintiff about in a way which was sure to “add insult to injury”. Walling v Walling, 2012 ONSC 6580, at para 14. The disappearance of the rest of the staff on the afternoon of October 8th is inexplicable in any way that casts a positive light on the Defendant.
[61] The Defendant’s conduct would have been egregious in any contractual environment, let alone in an environment which rightly emphasizes the principle of respect for the other. Given the public policy, human rights, and health care context of the Defendant and the project, this behaviour was inappropriate to an exemplary extent.
[62] This conduct, in this context, provides a factual basis for punitive damages. Punitive damages, taken in context, are properly “designed to impose a punishment on the defendant and to set an example to others who might seek to act in a similar way.” Huff v Price (1990), 1990 5402 (BC CA), 76 D.L.R. (4th) 138, at 201 (BC CA).
[63] In Whiten v Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, the Supreme Court of Canada dealt with an insurance company’s unacceptable conduct toward the purchasers of homeowner insurance by observing, at para 4, that “people who sell peace of mind should not try to exploit a family in crisis.” Likewise, I am tempted to say that an organization that advocates human rights and respect should be a model for its own principles. While I do not think that a human rights or non-profit health care organization is held to a higher legal standard than other business entities, its conduct was particularly hurtful to a consultant such as the Plaintiff, who was recruited for his very sensitivity to others.
[64] Of course, any measure of punitive damages must be calculated with a view to the size of the claim and its value to the parties, and must not be inordinately large. Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 SCR 1130, at para 159. Here, the Plaintiff’s recoverable fees for services rendered are not particularly high, although the real amount of his loss is a good deal larger. He gave credible evidence that he was not able to make up for the lost retainer with other work during the following six months. Also, it is not only the size of the loss that is important to the proportionality analysis, but the exposure to costs and legal fees that the Plaintiff assumes in having to pursue litigation over the Defendant’s misconduct. Whiten, supra, at para 4.
[65] Some measure of punitive damages is warranted in order to express the court’s disapproval, to set a public example, and to deter the kind of conduct evidenced here. Given the size of the contract, however, the $100,000 requested by the Plaintiff appears excessive.
IV. Disposition
[66] The Defendant shall pay the Plaintiff compensatory damages representing six days’ work at his standard rate of $840, for a total of $5,040.
[67] The Defendant shall also pay the Plaintiff punitive damages in the amount of $15,000. I consider this to be a small award that is not out of line with the size of the overall claim, but that hopefully is substantial enough to express some disapprobation over the way the Plaintiff was treated. Robitaille v. Vancouver Hockey Club Ltd. (1981), 1981 532 (BC CA), 124 DLR (3d) 228, at 250 (BC CA).
V. Costs
[68] The Plaintiff shall have his costs of this action. The only offer to settle that I have been made aware of is an offer by the Defendant dated January 18, 2010 in which the Defendant offered to pay the Plaintiff $1,600, which is less than the Plaintiff’s recovery here and does not relieve the Defendant of liability for costs.
[69] Plaintiff’s counsel has submitted a Costs Outline calculating costs on a partial indemnity basis of just under $40,000. That strikes me as a very reasonable amount for a case that went all the way to trial, even if the trial itself was only two days.
[70] The modest costs are explained partially by the efficiency of counsel on both sides of the case, and partly by the fact that Plaintiff’s counsel did not conduct any examination for discovery of the Defendant. The Defendant had offered its current executive director, who was not involved in any way in the relevant events, as its representative at discoveries. The Plaintiff, of course, would have preferred to discover Mr. Langille, Mr. Compton, or Mr. Prince, as they were the individuals with knowledge of the facts giving rise to the claim.
[71] Since those three individuals are not current officers, directors, or employees of the Defendant (indeed, Mr. Prince never was), Defendant’s position on discoveries may have been a defensible one under Rule 31.03(2). However, it certainly would have prevented the Plaintiff from actually discovering any of the Defendant’s case beyond the documentary record. Accordingly, the action proceeded to trial without any pre-trial examination of the Defendant. I commend Plaintiff’s counsel for doing an effective job at trial without having had any discovery of the other side.
[72] The Defendant shall pay costs to the Plaintiff in the amount of $40,000, inclusive of HST and disbursements.
Morgan J.
Released: April 24, 2013
COURT FILE NO.: CV-11-436717
DATE: 20130424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John McCready
Plaintiff
– and –
De Dwa De Dehs Ney>s Aboriginal Health Centre
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: April 24, 2013