Court File and Parties

COURT FILE NO.: 11-CV-436151

DATE: October 10, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PAULINE SALIBA

Plaintiff

– and –

SWISS REINSURANCE COMPANY LTD.

Defendant

John S. McNeil, Q.C. for the Plaintiff

David Hager for the Defendant

HEARD: September 24, 2013

PERELL, J.

REASONS FOR DECISION

[1] The Defendant Swiss Reinsurance Company Ltd. appeals the decision of Master Muir dated January 25, 2013. The Master dismissed Swiss Reinsurance’s motion pursuant to rule 30.06 of the Rules of Civil Procedure for an order requiring the Plaintiff, Pauline Saliba, to serve a further and better affidavit of documents. In particular, Swiss Reinsurance sought e-mails from Ms. Saliba’s personal computer and also cell phone records.

[2] Swiss Reinsurance submits that the Master erred for several reasons. Ms. Saliba submits that the Master was correct and also objects to Swiss Reinsurance advancing a different and new theory for the relevance of the e-mails and cell phone records than advanced before the Master.

[3] The Master’s endorsement, which sets out the nature of the lawsuit, the nature of the motion, the law he applied, and his analysis, was as follows:

1. The Defendant brings this motion pursuant to rule 30.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order requiring the Plaintiff to serve a further and better affidavit of documents. Specifically, the Defendant argues that relevant e-mail and cell phone records have been omitted from the Plaintiff’s affidavit of documents.

2. In determining the issues on this motion, I have applied the relevance test set out in rule 30.02(1). I am also mindful of the proportionality considerations set out in rule 29.2.03.

3. This is a wrongful dismissal action. The Plaintiff was employed by the Defendant and its predecessor corporation from August 1997 to June 30, 2011. She appears to have held several different positions. The Plaintiff worked from home for most of the time period relevant to this motion. At the time of her dismissal, she was earning approximately $140,000.00 per year, including benefits.

4. Before it dismissed the Plaintiff, the Defendant knew that the Plaintiff was working as a part time real estate agent. However, the Plaintiff had apparently assured the Defendant that she was only doing so during evening and weekend hours. The Defendant alleges that after the Plaintiff was dismissed, the Defendant learned that the Plaintiff was in fact doing at least some of her real estate agent work during the time she should have been working for the Defendant (Monday to Friday – 8:00 a.m. to 4:00 a.m.). The Defendant learned of this fact through an examination of the hard drive of the computer used by the Plaintiff at the offices of the Defendant. It revealed that what the Defendant has described a “significant number” of e-mails that the Plaintiff was conducting her real estate business during working hours.

5. As a result of obtaining this additional information regarding the Plaintiff’s real estate related work, the Defendant is now defending this action, in part, on the basis of cause. It alleges that the Plaintiff breached her duties of loyalty and good faith to her employer, thereby justifying her dismissal.

6. The Defendant now seeks copies of all the Plaintiff’s personal e-mails between November 26, 2009 and June 30, 201 that in any way relate to her real estate business. The Defendant also requests production of all the Plaintiff’s cell phone bills showing all real estate business related calls for the same time period. The Defendant argues that these documents are relevant to the issue of whether the Plaintiff breached her duties of loyalty and good faith. The Defendant submits that these documents will demonstrate the extent to which the Plaintiff sent or received e-mails and made phone calls relating to her real estate business at times when the Defendant says that she should have been working on its behalf.

7. In my view, the documents requested by the Defendant are only of marginal relevance to the matters in issue in this action. The “significant number” of real estate related e-mails the Defendant refers to in paragraph 18 of its statement of defence turns out to be about seven over a time period of 18 months. It is also my view that the information about the Plaintiff’s e-mail and cell phone use requested by the Defendant is not particularly probative of the issue of the Plaintiff’s alleged breach of her duties to the Defendant. The Defendant’s employee handbook is far from clear about whether such activity was strictly prohibited, as the Defendant suggests, or whether it was prohibited only when the activity interfered with an employee’s job performance. I note that there is no suggestion in the statement of defence that the Plaintiff’s job performance failed to meet the Defendant’s required standards in any way. In my view, the Defendant’s arguments about what the e-mail message and cell phone records might reveal are highly speculative. Their request for these documents simply amounts to a fishing expedition.

8. In addition, I accept the Plaintiff’s evidence that the e-mail production requested would require the Plaintiff to review thousands of e-mail messages and that the work involved in retrieving, reviewing, and redacting those messages would be enormously time consuming. Hundreds of hours would be required. The Defendant has suggested, through hearsay evidence from its Litigation Support Manager, that there may be “work arounds for extracting relevant data” that would make the process less time consuming. However, it appears that such a solution is only applicable to web based e-mail applications and not to the non-web based e-mail application where about 99% of the subject e-mail messages are located.

9. In my view, in the circumstances of this action, it would be unreasonable and not in keeping with the principle of proportionality, to require the Plaintiff to expend the kind of time and effort she has described in order to produce these documents. In the event that the Defendant fails to prove cause, a reasonable notice period for the Plaintiff would be in the 12 month range. That notice period would be subject to a reduction for mitigation. There is also an issue of whether the Plaintiff was given six months of working notice from January to June 2011, which may lead to a further reduction in her claim. Her salary and benefits were paid until September 23, 2011, which must also be deducted from her claim. Taking all of this into account, it is my view, for the purposes of this motion, that the Plaintiff’s claim is probably within the simplified procedure range. Therefore, the application of Rule 29.2.03 also leads me to conclude that the requested production need not be made.

10. For these reasons, the Defendant’s motion is dismissed. ….

[4] Swiss Reissurance’s argument for the production of the e-mail messages and phone mail records is that these documents are relevant to its defence that after it dismissed Ms. Saliba without cause, it discovered that there was a reason to dismiss her for cause. The particulars of this defence are set out in paragraphs 16 to 19 of the statement of defence, which state:

16. In April 2011, it was discovered that Saliba was carrying on business of a real estate agent while working for Swiss Re. However, Saliba assured Swiss Re that her participation in the real estate business only occurring during nights and on the weekends and that it would not interfere in any way with her work at Swiss Re.

17. Swiss Re has internet and e-mail usage policies that were known to Saliba that include the following:

(a) Swiss Re provides internet and e-mail access so that its employees can carry out their responsibilities on behalf of the company and employees are expected to use such access for business-related purposes;

(b) Swiss Re prohibits the use of its internet and e-mail systems for personal gain or to solicit for ventures unrelated to Swiss Re’s business;

(c) Personal use of the internet, if any, should be minimal and must not interfere with or adversely affect any aspect of Swiss Re’s business;

(d) Swiss Re’s electronic mail system and all messages it handles are the property of the company;

(e) Swiss Re maintains the right to view, access and disclose all messages sent or received or stored over the e-mail for any purpose without the employee’s consent;

(f) Deletion of messages by the employee does not restrict or eliminate Swiss Re’s ability or right to access such messages; and

(g) No employee should have any expectation of privacy as to his or her internet usage.

18. Swiss Re reviewed the hard drive of the Swiss Re computer used by Saliba as an employee of Swiss Re to determine if she worked during business hours in the real estate business or if she breached Swiss Re’s conflict of interest policy and internet and e-mail usage policy. The result of this investigation revealed a significant number of e-mail showing that during 2009, 2010, and the first half of 2011, Saliba was conducting personal business during working hours and using the Swiss Re internet and e-mail systems for personal gain or to solicit business ventures unrelated to Swiss Re’s business. The e-mails included e-mails from and to real estate agents, e-mails relating to real estate listings, e-mails relating to rental properties, revisions to an agreement of purchase and sale, correspondence with potential clients and e-mails relating to mortgage commitments, negotiations on completion of work on a property and providing instructions to her lawyers with respect to claims in relation to a property. E-mails that were sent to Saliba used Swiss Re’s e-mail that described her as “Pauline Saliba/Vice President/ Claims & Liabilities, Swiss Reinsurance Company Ltd. Many e-mails were sent or received during business hours.

19. Swiss Re states that Saliba breached her duty of loyalty and good faith to Swiss Re by working during business hours to advance her personal financial interests, including the establishment and carrying on of a real estate business. Swiss also states that Saliba was in breach of its internet and e-mail usage policies.

[5] As I read the Master’s reasons, he dismissed the motion for a further and better affidavit of documents for three reasons: (1) the documents were only of marginal relevance; (2) the request for documents was speculative and a fishing expedition for relevant documents; and (3) ordering production would offend the proportionality principle.

[6] In my opinion, the Master’s decision can be upheld based on the third of his progressively stronger rationales for his order dismissing Swiss Reinsurance’s motion.

[7] Because of the strength of the third rationale, I do not need to finally decide the correctness of the first two rationales, but I can readily appreciate why the Master might regard the request for the production of Ms. Sabina’s personal e-mail messages as of marginal relevance and a fishing expedition.

[8] In addition to the marginal relevancy factors identified by the Master, the documents would not be relevant to Swiss Reinsurance’s policies described in paragraph 17 of its Statement of Defence, which concern the use of its own e-mail systems, i.e., paragraph 17 is about Ms. Sabina misusing the address Pauline_Saliba@swissre.com, but the documents requested are about her own personal e-mail systems at: Pauline@PaulineSaliba.com; paslaba@rogers.com, paulinesaliba@ps-it-sold.com; and paulinesaliba@live.ca. Further, the five e-mail messages produced by Swiss Reinsurance are hardly, as pleaded in paragraph 18 of the statement of claim, a “significant number of e-mail” showing that she was using the Swiss Reinsurance internet and e-mail systems for personal gain or to solicit business ventures unrelated to Swiss Reinsurance’s business. It arguably does appear to be fishing for cause to require production of e-mail that did not use the Swiss Reinsurance e-mail system.

[9] In any event, I do not need to decide the merits of the first two rationales and the several arguments made by Swiss Reinsurance that the Master was incorrect in arriving at his decision based on these rationales. In my opinion, the Master correctly applied the proportionality principle.

[10] Rule 29.2.03 requires the court to consider a variety of factors associated with the idea of proportionality when making a determination of whether a party or other person must answer or produce a document in an affidavit of documents, for an examination for discovery, for an inspection of property, for a medical examination or for an examination for discovery by written questions. The rule states:

CONSIDERATIONS General

29.2.03 (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.

Overall Volume of Documents

(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.

[11] As the Master appreciated, most, if not all, of the considerations favouring proportionality apply in the circumstances of the immediate case. See also: Ontario v. Rothmans Inc., 2011 ONSC 2504, leave to appeal to the Div. Ct refused 2011 ONSC 3685; Javitz v. BMO Nesbitt Burns Inc., 2011 ONSC 1332; Abrams v. Abrams, 2010 ONSC 2703; Warman v. National Post Co,. 2010 ONSC 3670 (Master).

[12] For the above reasons, I dismiss the appeal. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Saliba’s submissions within 20 days of the release of these Reasons for Decision followed by Swiss Reinsurance’s submissions within a further 20 days.

Perell, J.

Released: October 10, 2013

COURT FILE NO.: 11-CV-436151

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PAULINE SALIBA

Plaintiff

‑ and ‑

SWISS REINSURANCE COMPANY LTD.

Defendants

REASONS FOR DECISION

Perell, J.

Released: October 10, 2013.