SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-459998
MOTION HEARD: JUNE 5, 2013

RE: Brian Trudel v. Marwood Ltd. and David Harris

BEFORE: MASTER R.A. MUIR

COUNSEL:
Thomas J. Gorsky for the plaintiff
Mark D. Tector for defendants

REASONS FOR DECISION

[1] The plaintiff brings this motion for an order compelling the defendant David Harris (“Harris”) to attend at an examination for discovery on his own behalf and on behalf of the corporate defendant (“Marwood”).

[2] The plaintiff was employed by the defendant as a sales representative from July 2005 to June 2012. On December 26, 2011, the plaintiff suffered a serious stroke. He was off work until March 2012. When he returned to work in March 2012 he did so at reduced hours and responsibilities. On April 18, 2012, the plaintiff was advised that it was Marwood’s position that the plaintiff was medically unable to perform his job responsibilities. The plaintiff then went on leave and was eventually terminated by Marwood on June 28, 2012.

[3] This action for wrongful dismissal, and other related relief, was started on July 27, 2012. In October 2012, the parties agreed to a discovery plan. The discovery plan provided, among other things, that Harris would be examined in Toronto (Harris is a resident of Nova Scotia).

[4] The plaintiff served his affidavit of documents on October 29, 2012. The defendants took issue with the plaintiff’s affidavit of documents on the basis that no medical evidence was included with the plaintiff’s productions. Some medical evidence was then provided by the plaintiff on December 19, 2012 but the defendants argue that the production remains incomplete.

[5] On January 22, 2013, the plaintiff served a notice of examination returnable January 30, 2013. The defendant did not agree to the date for the examination in advance. On January 30, 2013, the defendants’ lawyer wrote to the plaintiff’s lawyer and advised that Harris would not be produced until the issues regarding the medical production were resolved. The defendants’ lawyer also suggested that the production issues be resolved on the same date as the plaintiff’s motion to compel Harris’ attendance at discovery. The plaintiff’s lawyer did not respond to this request and to several other follow-up letters from counsel for the defendants. As a result, the defendants’ production motion is now set to be heard on November 1, 2013. The defendants argue on this motion that Harris’ examination should wait until after their motion has been dealt with.

[6] In my view, it would have been preferable and more efficient for this motion and the defendants’ production motion to be heard at the same time. A convenient date for doing so could have been arranged had the plaintiff’s lawyer responded to counsel for the defendant in a timely fashion. However, I am nevertheless satisfied in the circumstances of this action that the plaintiff is entitled to proceed with his examination of Harris prior to the defendants’ production motion. I agree with the defendants that in certain circumstances it is appropriate to delay a party’s prima facie right to conduct an examination for discovery where significant production issues remain outstanding. See Air Canada v. WestJet Airlines Ltd., [2006] O.J. No. 1797 (S.C.J.) at paragraph 5. However, the plaintiff has made some medical production, including physiotherapy and physiatry records. Moreover, I do not see the necessity for Harris to review all of the plaintiff’s medical records prior to his examination, especially given the lack of specificity in the statement of defence with regard to the plaintiff’s inability to perform his job functions. Finally, I note that Mr. Gorsky has advised the court that he will not be asking Harris any questions about the plaintiff’s medical condition.

[7] I am also not prepared to give effect to the defendants’ argument that Harris was not properly served with the plaintiffs’ notice of examination in January 2013. In my view, having agreed as part of the discovery plan that Harris would be examined in Toronto, the defendants have waived the requirements of Rule 34.07 (examinations of persons residing outside of Ontario) and the provisions of Rule 34.06 (examinations on consent) now apply.

[8] For these reasons, it is my view that the examination of Harris should proceed in advance of the defendants’ production motion. The examination will take place in Toronto, as agreed to by the parties. It appears that all parties are available on July 8, 2013.

[9] The plaintiff has been successful on this motion and in the usual course would be entitled to his costs. As I have stated above, however, it is my view that the plaintiff should have been more cooperative in scheduling the defendants’ production motion. The plaintiff’s lawyer failed to respond to at least three letters from counsel for the defendants. It would have been far more cost effective and efficient to deal with the defendants’ production motion at the same time as this motion. For this reason, it is my view that there should be no order with respect to the costs of this motion.

[10] I therefore order as follows:

(a) Harris shall attend to be examined for discovery, on his own behalf and on behalf of Marwood, on July 8, 2013 in Toronto at a location to be agree upon by the parties; and,

(b) there shall be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: June 5, 2013