COURT FILE NO.: CV-12-454827
DATE: 20131022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dr. David Robinson v. London Health Sciences Centre and The University of Western Ontario
BEFORE: Master Glustein
COUNSEL: Matthew Wilton for the plaintiff
Emily McKernan for the defendant London Health Sciences Centre
HEARD: October 9, 2013
REASONS FOR DECISION
Nature of motion and overview
[1] The plaintiff, Dr. David Robinson (“Dr. Robinson”) brings a motion under Rule 31.03(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order that the defendant London Health Sciences Centre (“LHSC”) produce Dr. Sandra Fisman (“Dr. Fisman”), a physician with privileges at LHSC, as its representative at examination for discovery.
[2] LHSC opposes the motion and proposes that its representative at examination for discovery be Mr. Bill Davis, Director of Medical Affairs at LHSC (“Mr. Davis”).
[3] For the reasons discussed below, I dismiss the motion and order that Mr. Davis be LHSC’s representative at examination for discovery.
[4] I find that while the court can expand the term “officer, director, or employee” under Rule 31.03(2)(a) to include an independent contractor such as Dr. Fisman, this is not an appropriate case to do so.
[5] The action arises from Dr. Robinson’s “constructive, or in the alternative, wrongful dismissal” by LHSC and the defendant The University of Western Ontario (the “University”) (as characterized by Dr. Robinson) or “voluntary resignation” from LHSC and the University (as characterized by the defendants). Dr. Robinson alleges that he was constructively dismissed after he and a group of other psychiatrists raised concerns about the propriety of Dr. Fisman’s use of a departmental stipend (the “Fund”) granted to LHSC by the Ministry of Health and Long Term Care (the “Ministry of Health”). In particular, Dr. Robinson alleges that as a result of expressing those concerns, he was constructively dismissed due to harassment by Dr. Fisman, who Dr. Robinson alleges was Chief of Psychiatry at LHSC and Chair of the Psychiatry Department at the University at the relevant dates.
[6] Dr. Robinson further alleges that both LHSC and the University failed to investigate his concerns, damaged his reputation, and breached fiduciary duties owed to him.
[7] In his statement of claim, Dr. Robinson relies on an audit of the Fund by the Ministry of Health, in order to support his claims of impropriety. Dr. Robinson also alleges that (i) LHSC conducted an investigation by an outside lawyer into concerns about Dr. Robinson’s conduct (the “Workplace Investigation”); (ii) the Workplace Investigation caused Dr. Robinson to become the subject of an investigation (the “CPSO Investigation”) by the Registrar of the College of Physicians and Surgeons of Ontario (“CPSO”) with regards to Dr. Robinson’s professional conduct; and (iii) his reputation was damaged as a result of the above.
[8] Under Rule 31.03(2)(a), the only individuals who may be examined on behalf of a corporation are “any officer, director or employee”, and the court may on motion by the corporation select only “another officer, director or employee”. Consequently, it would appear from Rule 31.03(2)(a) that no other individual (such as an independent contractor) could be compelled to attend as a corporate representative on examination for discovery.
[9] However, the case law relied upon by both parties supports an expansion of the term “officer, director, or employee” to include an independent contractor under Rule 31.03(2)(a) in limited circumstances, with the court considering such factors as (i) the extent to which the matters in dispute are “internal” in that they arise out of internal corporate conduct or “external” in that they arise from dealings between the plaintiff and the proposed representative independent contractor, (ii) whether the independent contractor is under a statutory duty to provide the information sought on examination for discovery, and (iii) whether the independent contractor acted in that capacity, or as an employee, at the date of the relevant events.
[10] Dr. Robinson alleges constructive dismissal by the alleged harassment by Dr. Fisman. However, this is not a straightforward constructive dismissal action in which only the “external” conduct between a Chief of Psychiatry and a Staff Psychiatrist is at issue.
[11] The present action raises significant issues about the propriety of LHSC’s use of the Fund, the propriety of the Workplace Investigation implemented by LHSC, and whether the Workplace Investigation caused the CPSO Investigation. All of those issues are “internal” matters as opposed to the “external” workplace relationship issues between Dr. Robinson and Dr. Fisman. These internal matters involve officers, directors, and employees of LHSC. On all of these issues, Mr. Davis can either provide direct evidence or is an appropriate person to obtain the information from LHSC.
[12] The action also raises issues about the defendants’ alleged failure to investigate Dr. Robinson’s concerns about his workplace treatment, the basis for damages to Dr. Robinson’s reputation (since LHSC alleges that the Workplace Investigation concluded that it was Dr. Robinson who made inappropriate disclosure and comments to residents), and whether LHSC acted in a willful manner such as to support a claim for punitive damages. These issues are internal and involve officers, directors, and employees of LHSC. On these issues as well, Mr. Davis can either provide direct evidence or is an appropriate person to obtain the information from LHSC.
[13] Further, Dr. Fisman is not under a statutory duty to provide the information sought by Dr. Robinson on examination for discovery.
[14] The expansion of the term “officer, director, or employee” under Rule 31.03(2)(a) should not be determined by whether the proposed independent contractor representative may be a “better” representative than the proposed corporate representative. Determining which representative is “better” is inconsistent with case law applicable to Rule 31.03(2)(a) which provides (i) a prima facie right to examine an officer, director, or employee of choice (but not an independent contractor or other non-party), and (ii) as such, a party seeking to examine a corporate representative must show only that the proposed representative has “sufficient” knowledge, regardless of whether the adverse party can establish a “better” representative.
[15] Similarly, the prima facie restriction under Rule 31.03(2)(a) to an “officer, director, or employee” ought not to be displaced if the corporate party can establish that the action arises from internal matters and that the proposed corporate officer, director, or employee has (or is the appropriate person to obtain) “sufficient” knowledge. While such a prima facie right can be “amplified” to include an independent contractor when the factors summarized above support such an order, this does not arise on the evidence in the present case.
Relevant facts
(a) The allegations in the statement of claim
[16] Dr. Robinson alleges that he was a Staff Psychiatrist at LHSC and an Associate Professor in the Department of Psychiatry at the Schulich School of Medicine and Dentistry at the University during the relevant time period.
[17] Dr. Robinson brings an action for, inter alia, (i) damages of $750,000 for constructive, or in the alternative, wrongful dismissal arising out of his claim that he left his employment with LHSC and the University due to harassment and intimidation by his supervisor Dr. Fisman, and (ii) damages of $300,000 for breach of contract for the defendants’ alleged failure to disburse funding from the Fund.
[18] Dr. Robinson also seeks damages of $50,000 for breach of fiduciary duty and punitive damages of $50,000 against the defendants since “the conduct of the Defendants was undertaken consciously and in full knowledge that such conduct was improper, in breach of fiduciary duties owed and likely to injure the Plaintiff. As a result of the willful and callous conduct of the Defendants in the aforesaid circumstances, an award of punitive, aggravated and exemplary damages is merited”.
[19] Dr. Robinson also seeks damages of $100,000 for “loss of reputation”.
[20] Dr. Robinson alleges that Dr. Fisman controlled the Fund and that when Dr. Robinson and a group of other psychiatrists questioned whether Dr. Fisman appropriately managed the Fund, Dr. Fisman harassed Dr. Robinson in a manner that amounted to constructive dismissal.
[21] Dr. Robinson alleges that he advised LHSC and the University of Dr. Fisman’s purported conduct but the defendants “failed to investigate and/or take any action with regards to his concerns regarding the harassment and otherwise inappropriate treatment he received from his supervisor, Dr. Fisman”. Dr. Robinson pleads that “[d]espite numerous requests for assistance, the Plaintiff states the Defendants failed to adequately investigate or remedy the concerns raised by the Plaintiff with regards to the intimidating and humiliating treatment he received from Dr. Fisman, his supervisor” and as such “the Defendants breached their duty to protect the Plaintiff from mistreatment by his supervisor”.
[22] Dr. Robinson pleads that “immediately” after he expressed his concerns, he “became the subject of an internal investigation at the LHSC by an outside law firm” and “[a]s a result of the aforementioned investigation, the Plaintiff became the subject of an investigation by the [CPSO] with regards to his own professional conduct”.
[23] Dr. Robinson further pleads that the Ministry of Health ordered an external audit which “determined that the departmental stipend had not been disbursed in accordance with the terms of the agreement”.
(b) The allegations in LHSC’s statement of defence
[24] LHSC denies the above allegations relating to its conduct.
[25] LHSC pleads that “[a]s a physician with active staff privileges, the Plaintiff was not an employee of LHSC. He did not receive salary nor was he issued a T4.”
[26] LHSC pleads that when Dr. Robinson and other psychiatrists forwarded a letter to LHSC setting out their concerns about the Fund, LHSC (i) “met with counsel appointed by the psychiatrist [sic] and provided information”, (ii) “responded to counsel for the Plaintiff and other physicians advising that the spirit of the agreement between LHSC and [the Ministry] is open to interpretation”, and (iii) “used the funds as it deemed appropriate”.
[27] LHSC pleads that “[i]n 2010, [the Ministry] conducted an audit of how the funds were used in three centres including LHSC” and that “[t]he audit found that [the Ministry] failed to clearly define the acceptable uses for program funding and to provide detailed clarifications as to what constitutes legitimate and reasonable recruitment and travel costs as well as maximum allowable costs for psychiatrists”.
[28] LHSC further pleads that it “was of the view that funding could be used for moving expenses, fellowship fees, all of which were meant to attract psychiatrist [sic] to the department”. LHSC pleads that “[t]he funding letter did not indicate that was not appropriate”.
[29] Finally, with respect to the audit, LHSC pleads that it held the monies in the Fund in trust “on the understanding that those funds be used for an aggressive long term recruitment plan”, and as such properly rejected the position of Dr. Robinson and the group of psychiatrists that “monies that were not disbursed or held in trust should be distributed to physicians within the department”.
[30] LHSC also “denies that as a result of the Plaintiff’s pursuit of an accounting of the stipend funding, that he became a target of [sic] systematic program of harassment and intimidation by Dr. Fisman or anyone”. LHSC pleads that “rather it was the Plaintiff who began to engage in a pattern of conduct, meant among other things, to undermine the credibility of the Chief of the Department”.
[31] LHSC pleads that Dr. Robinson engaged in “inappropriate behavior, not only in relation to [Dr. Fisman] but others in the Department”, and that in January 2010, “a meeting was held between LHSC’s IVP Medical Affairs and Medical Education and the Plaintiff, wherein he was advised that LHSC had received verbal concerns from several individuals regarding their interactions with him”.
[32] LHSC pleads that “[a]s a result of these concerns, LHSC made the decision that a review would be done to determine the nature and the extent of the concerns” and that LHSC decided to hire “an external investigator who had experience in conducting workplace reviews”. LHSC pleads that it “confirmed to the Plaintiff that the individual had no relationship with the leadership of the Department, and had not done a review within the Department of Psychiatry previously”. LHSC pleads that the reviewer was a lawyer from Filion Wakely Thorup Angeletti LLP.
[33] LHSC pleads that the Workplace Investigation report was completed on the same day as Dr. Robinson’s “resignation” and that “[t]he external investigator did identify problems with the Plaintiff’s conduct” including that he had “improper discussions directly with certain residents” about Dr. Fisman and the investigation into the use of the Fund. LHSC further pleads that “[t]he investigation found that as a result of the Plaintiff’s improper discussions directly with certain residents, they would discuss these issues with peers such that rumours existed in the Department as to the conflict between Dr. Fisman and the Plaintiff”.
[34] LHSC pleads that the reviewer concluded that (i) “Dr. Fisman had never discussed the Plaintiff in a negative fashion and therefore it was the Plaintiff’s disclosure of his conflict with, and his views of Dr. Fisman, to the residents that was the cause of the rumour”; and (ii) “the Plaintiff’s conduct was inappropriate and potentially damaging to Dr. Fisman’s reputation amongst the resident [sic], but more importantly damaging to the program”.
[35] LHSC “denies that as a result of the investigation the Plaintiff became the subject of an investigation by the Registrar of the College and [sic] Physicians and Surgeons but states rather he became subject to an investigation as a result of his voluntarily [sic] resignation from medical staff of LHSC during the course of an investigation into his conduct”. LHSC pleads that “[p]ursuant to Section 33 of the Public Hospitals Act, RSO 1990, C.P. [sic] 40, it was mandatory for LHSC to file a detailed report to the College of Physicians and Surgeons of Ontario which LHSC did”.
[36] Consequently, in support of its position that it acted appropriately, LHSC relies upon (i) its response to questions from counsel for Dr. Robinson and the group of other physicians about the Fund, (ii) an audit of the Fund by the Ministry of Health, and (iii) the Workplace Investigation conducted by, and review report prepared by, an outside labour lawyer to address concerns about Dr. Robinson’s conduct in the workplace including his conduct toward Dr. Fisman.
(c) The legal status of Dr. Fisman
[37] Dr. Fisman was Chief of Psychiatry at LHSC during the relevant time period leading up to the alleged constructive dismissal. Counsel for LHSC on this motion acknowledged that Dr. Fisman was an employee of LHSC at the relevant dates.
[38] Dr. Fisman no longer holds the position of Chief of Psychiatry. She is not a medical director of LHSC and she does not sit on LHSC’s senior leadership committee. Dr. Fisman is not on the LHSC payroll.
[39] While Dr. Fisman currently (i) has privileges at LHSC, (ii) has an office at LHSC, (iii) attends at LHSC for clinical duties, (iv) sees patients at LHSC, (v) is the chair of the division for adolescent health at LHSC, (vi) remains on call at LHSC, and (vii) affiliates herself with LHSC on certain research matters and interviews, counsel for Dr. Robinson on this motion acknowledged that at present, Dr. Fisman is not an employee but is an independent contractor.
(d) The ability of Mr. Davis to provide evidence
[40] Mr. Davis is Director of Medical Affairs for LHSC.[^1]
[41] With respect to the issues in the action concerning the Fund, Dr. Fisman acknowledged the role of Mr. Davis and Medical Affairs in a letter dated December 14, 2009 to the University to respond to the concerns raised by Dr. Robinson. Dr. Fisman stated that “These monies [in the Fund] are managed in Medical Affairs and there are specific guidelines as to their distribution. … Dr. Gillian Kernaghan[^2] and Mr. Bill Davis have overseen this process …”.
[42] Further, all disbursements from the Fund required the approval of Medical Affairs.
[43] Dr. Robinson filed evidence to demonstrate that Dr. Fisman had discretion as to the use of the funds and that such funds were disbursed with the Department of Psychiatry Finance Management Committee (of which Mr. Davis was not a member) acting in an advisory capacity to the process. However, such evidence does not detract from LHSC’s oversight role for the Fund (through Mr. Davis and Dr. Kernaghan), with the Ministry’s alleged audit conclusion of “deviations from the funding agreement” (as pleaded by Dr. Robinson) being an issue in the present action.
[44] All of the documents between the Ministry and LHSC about the audit were addressed to the administration of LHSC. The VP Medical Affairs (Dr. Kernaghan) and Medical Affairs Administrator were each referred to as a “key contact” in the Ministry of Health audit. While Dr. Fisman was also a “key contact” for the audit, such evidence does not detract from the role of Medical Affairs or others at LHSC in the audit.
[45] Mr. Davis was copied on correspondence from Dr. Fisman relating to the concerns expressed by Dr. Robinson and the group of psychiatrists about the Fund.
[46] Medical Affairs is also “involved in complaints relating to the performance of credentialed staff” since it “coordinate[s] and support[s] the work of the Medical Advisory Committee”.
[47] Dr. Robinson filed evidence that the review role is conducted by the Medical Advisory Committee which does not include members of Medical Affairs. However, article 8.1 of the LHSC by-laws relied upon by Dr. Robinson demonstrates that the Medical Advisory Committee includes numerous LHSC Chiefs of Departments, the President, Vice President and Secretary of the Credentialed Professional Staff, physicians appointed by the board of directors of LHSC, and other physician members appointed by the Medical Advisory Committee from time to time.
[48] Further, the Director, Medical Affairs has a right to attend meetings of the Medical Advisory Committee.
(e) Other relevant evidence
[49] There is no evidence that attendance by Dr. Fisman at an examination for discovery would be oppressive in that it would unnecessarily take Dr. Fisman away from onerous management responsibilities or would give rise to an excessive number of undertakings.
Applicable law
(i) Legal status of Dr. Fisman
[50] As I discuss above, counsel agree that Dr. Fisman is not presently an officer, director, or employee of LHSC. She is an independent contractor, a long-settled status of physicians with privileges who work at a hospital without being paid or employed by the hospital (see the summary of the law by Picard and Robertson, Legal Liability of Doctors and Hospitals in Canada (Carswell Thomson Professional Publishing, 2007) at pp. 478 and 486).
[51] Conversely, as I discuss above, counsel agree that Dr. Fisman was an employee at LHSC during the relevant time period leading to Dr. Robinson’s alleged constructive dismissal.
(ii) The test for expanding beyond the legal status of an officer, director, or employee to compel an independent contractor or other non-corporate person to be a corporate representative on examination for discovery
[52] On a review of Rule 31.03(2)(a), the legal basis to expand the categories of individuals who can be compelled to attend as corporate representatives is not apparent. Under Rule 31.03(2)(a), the only individuals who may be examined on behalf of a corporation are “any officer, director or employee”. The court has no discretion to order otherwise, and the right to examination for discovery is a creation of the Rules. Further, under Rule 31.03(2)(a), the court may on motion by the corporation select only “another officer, director or employee”, again with no discretion of the court to do otherwise. Consequently, it would appear from Rule 31.03(2)(a) that an individual who does not have the legal status of an officer, director, or employee (such as an independent contractor) could not be compelled to attend as a corporate representative on examination for discovery.
[53] However, both counsel thoroughly presented the applicable case law in which the courts compelled individuals who do not have the legal status of an officer, director, or employee to be corporate representatives on examination for discovery. Consequently, I am bound by those decisions which adopt that general principle.
[54] As each case depends on its own facts, I review each of the cases relied upon by the parties and summarize the principles from those cases.
1. The cases relied upon by the parties
a. Bell v. Klein (1954), 1954 242 (BC CA), [1955] 1 D.L.R. 37 (B.C.C.A.) (QL) (“Bell”)
[55] In Bell, the B.C. Court of Appeal upheld the lower court decision to order corporate auditors to be examined for discovery on behalf of the defendant corporations. However, it is LHSC who relies on this case to set out principles as to when such an order is appropriate.
[56] O’Halloran J.A. held that (i) the expression “officer or servant” “may be amplified or circumscribed by the circumstances in each individual case within the objects of oral discovery”; (ii) the company auditor, elected to the office by shareholders, was “a company officer in a wider sense” within the rule permitting an “officer or servant” to be examined for discovery; and (iii) in British Columbia, there was “a series of decisions that recognize the impracticality of defining ‘officer or servant’ in M.R. 370c [the B.C. examination for discovery rule] within rigid limits” (Bell, at paras. 8 and 9).
[57] O’Halloran J.A. held that the issue for examination for discovery was the knowledge of the auditors, since “knowledge of the auditors became the knowledge of, or at least was available to, the shareholders of the parent public company at the annual meetings” (Bell, at para. 11). O’Halloran J.A. held the auditors were the only available source of that knowledge (Bell, at para. 11):
If company auditors become the only available source of that knowledge, as seems to be the case here, I see no reason why they should not be able to state on discovery what it would have been their duty to state at an annual meeting if then questioned by the shareholders of the public company.
[58] Consequently, O’Halloran J.A. held that “in the particular circumstances of this case the auditor is examinable as an officer or servant” (Bell, at para. 10).
[59] O’Halloran J. further stated that “we are not holding that because a company auditor is here examinable on discovery, that what he says is an admission in this case by the company against itself” (Bell, at para. 12).
[60] In Bell, Robertson J.A. (Smith J.A. concurring) reviewed the role of the auditor and considered case law relating to whether a person was an “officer” of the company, which term had been expanded by the case law to include employees (Bell, at paras. 38-40). Robertson J.A. also ordered the auditors to be examined for discovery.
[61] Consequently, the decision in Bell stands for the proposition that the court can “amplify” the term “officer, director, or employee” in “the circumstances in each individual case within the objects of oral discovery” to include an individual who is not an officer or servant (or employee), but that relevant factors to guide the court’s discretion should include that the proposed representative (i) is the only available source of information, (ii) may be bound by a statutory duty to provide the information in any event, or (iii) may not bind the corporate party by the answers to questions at examination for discovery.
b. Gibson et al. v. Bagnall et al. (1978), 1978 1572 (ON SC), 22 O.R. (2d) 234 (H.C.J.) (“Gibson”)
[62] Dr. Robinson relies on the decision of the court in Gibson. There is a similarity between Gibson and the present case in that the ultimate motion in Gibson would have required a determination by the court as to whether a physician with privileges at the hospital could be compelled as the hospital’s representative on examination for discovery rather than the medical director of the hospital proposed by the defendant hospital, in the context of a motion by the corporate defendant to substitute the plaintiffs’ selection of the physician with privileges.
[63] However, in Gibson, there was no issue before Eberle J. as to which doctor should be ordered to attend for examination for discovery as the only issue before Eberle J. was the relevance of cross-examination questions for the ultimate motion to be determined at a later date.
[64] In Gibson, the plaintiffs selected Dr. Peterson to be the defendant hospital’s representative at examination for discovery. Dr. Peterson was “in private practice with privileges at the hospital and has a teaching position with the University of Ottawa Medical School” and was “presently chief of the division of neuro-surgery which is a division within the department of surgery” and “[a]t the time of the surgical procedures referred to earlier he was acting chief of the neuro-surgery division” (Gibson, at p. 236).
[65] The defendants brought a motion for an order to substitute Dr. McKerracher as the representative for examination for discovery. Dr. McKerracher was the medical director of the hospital (Gibson, at p. 234).
[66] Prior to the motion, Dr. McKerracher was cross-examined on his affidavit in support of the motion and he refused certain questions. Consequently, Eberle J. only considered whether the refusals were proper. Eberle J. stated that he was only considering whether the impugned cross-examination questions related to (i) whether Dr. McKerracher had sufficient knowledge to be a proper person to be discovered on behalf of the hospital and (ii) whether Dr. McKerracher would be an embarrassment to the hospital in a legal sense (Gibson, at p. 235).
[67] Eberle J. expressly held that “I make it clear that on the present application I am not called upon to decide which of the two doctors is the proper one to be examined for discovery on behalf of the hospital; the motion for that purpose is not before me” (Gibson, at p. 235).
[68] However, as a “preliminary matter”, Eberle J. considered whether Dr. Peterson “falls within the language of Rule 326(2); that is, is he an officer or servant of the corporate party, Ottawa Civic Hospital?” (Gibson, at p. 235).
[69] Eberle J. held that Dr. McKerracher was the medical director of the hospital and as such was an “employee of it and clearly comes within the language of Rule 326(2)” (Gibson, at p. 235).
[70] Eberle J. held that Dr. Peterson, as chief of a division of the medical staff, was a “potential examinee” within the ambit of Rule 326(2) as an officer or servant (Gibson, at p. 237). Eberle J. stated (Gibson, at p. 236):
the functions of care and treatment of ill persons is in the hands of medical doctors who, while not ordinarily employees of the hospital in the traditional sense, are “on the staff” of the hospital; and the hospital delegates a significant part of its function to such persons.
[71] Eberle J. reviewed the role of chiefs of departments under the Public Hospitals Act, R.S.O. 1970, c. 378 and the by-laws of the hospital and stated that “the chief of a division is responsible for the quality of professional care provided in his division” (Gibson, at pp. 236-37).
[72] Eberle J. followed the decision in Bell in which the court considered the substantive issue (which was not before the court in Gibson) of whether the auditor of a company could be compelled to attend as an officer for purposes of examination for discovery. However, as I discuss above, the decision of O’Halloran J.A., which has been relied upon by other courts to expand the ambit of “officer, director, or employee” in certain cases, expressly noted that (i) the corporate auditors who were ordered to be examined were “the only available source” of knowledge for the discoveries; and (ii) the court was not making a finding that the examination for discovery of the auditors would bind the corporation.
[73] In Gibson, Eberle J. did not address whether Dr. Peterson was “the only available source” of knowledge, or whether Dr. Peterson’s evidence would bind the hospital, since these issues were not before him on the refusals motion. Eberle J. was not deciding whether to order Dr. McKerracher to be substituted for Dr. Peterson.
[74] Consequently, while Eberle J. adopted the “amplified” approach in Bell, his only finding on the “preliminary issue” was that Dr. Peterson was a “potential examinee” so that Eberle J. could then consider the relevance of the cross-examination questions (Gibson, at p. 237).
[75] Dr. Robinson relies on Gibson as being directly on point to compel Dr. Fisman to be examined given her past role as Chief of Psychiatry at the relevant times. However, Gibson does not stand for that proposition, and at best can be taken only to support the proposition that a doctor with privileges at a hospital may be a “potential examinee” since the predecessor to Rule 31.03(2)(a) cannot be limited to the confines of the legal status of officer, director, or employee.
c. Joseph Silaschi General Contracting (Kitchener) Ltd. v. Kitchener (City), [1986] O.J. No. 2545 (H.C.J.) (“Silaschi”)
[76] LHSC relies on the decision of the court in Silaschi, in which Scott J. dismissed a motion to compel an architect to be examined for discovery on behalf of the defendant city. The action was for damages for breach of a contract between the plaintiff and the defendant city for renovations to a municipal building. Four months after the contract was entered into the city ordered the plaintiff off the job. The plaintiff sought to examine the architect (Robertson) who (i) acted as the city’s representative in charge of the project, (ii) issued instructions to the plaintiff, and (iii) ultimately ordered the plaintiff to leave the job site (Silaschi, at paras. 2 and 3).
[77] Scott J. considered the decision in Bell and other case law. Scott J. held there was no evidence that the architect acted as the city’s agent (Silaschi, at para. 28). Scott J. accepted the general principle that the terms “officer, director, or employee” should be considered in a flexible manner, but held that it was not appropriate to do so when the architect acted only as an independent contractor at the relevant times. Scott J. concluded (Silaschi, at para. 30):
While, with respect, I agree with the principle enunciated in Bell v. Klein, as well set out in the headnote, that “officer” or “servant” (or “employee”) cannot be defined within rigid limits but may be amplified or circumscribed by the circumstances in each individual case, I cannot find that the circumstances here justify amplification of the word “employee” to embrace a totally different entity, an independent contractor. As Mr. O’Connor pointed out, it would be contrary to law and common sense to expect the testimony of an independent contractor to bind a corporation in respect of which he acted in that capacity.
[78] Scott J. held that since the architect never could have bound the corporate defendant as at all times the architect acted as an independent contractor, it did not matter that the corporate officer, director, or employee would not have knowledge of the underlying facts. Scott J. held (Silaschi, at para. 33):
Mr. Flaxbard pointed out that if he were unable to examine Robertson for discovery, he would be obliged to examine a genuine officer or employee of the City, who would not have the knowledge of Robertson as to what happened on the job site; hence the discovery would consist mainly of a mass of undertakings to find out and inform. This is not abnormal in discoveries and forms no basis for an order which would deform or amend a specific rule. Furthermore, if information is withheld or is unavailable, recourse may be had to r. 31.10, which provides for discoveries of non-parties with leave and subject to certain conditions precedent; to be sure, evidence thus obtained cannot be read into the evidence at trial (r. 31.10(5)), but it may certainly be useful in preparing for trial and on cross-examination.
[79] Consequently, the decision in Silaschi stands for the proposition that if the proposed independent contractor representative acted as an independent contractor at the relevant time period, this would be an important and possibly determinative factor against ordering that individual to attend as a corporate representative.
d. Atherton v. Boycott, [1989] O.J. No. 3093 (H.C.J.) (“Atherton”)
[80] Dr. Robinson relies on the decision of the court in Atherton, in which Cusinato J. ordered a police sergeant to be examined for discovery on behalf of the defendant City of Windsor although he was not an officer, director, or employee of the city. The action was for damages caused by the sergeant while driving a police vehicle. The action against the defendant sergeant was statute-barred due to a missed limitation period (Atherton, at paras. 3-4).
[81] As in Bell, the court focused on specific factors relevant to the exercise of its discretion to amplify the ambit of officer, director, or employee.
[82] While Cusinato J. did not comment on the importance of the evidence from the sergeant, his findings demonstrate the importance of the sergeant’s role. Cusinato J. held (Atherton, at paras. 5, 8-10):
As to the specific issue for trial, and the possible negligence of this individual Sergeant Boycott, it is acknowledged he was the operator of a motor vehicle owned by the city of Windsor, as are all police vehicles.
As to the accident report filed, it states through Sergeant Boycott, the operator of the city vehicle, that he was proceeding prior to the accident, east on Tecumseh Road, cautiously through an intersection against a red light, to an emergency call. At this time he became involved in a collision with the plaintiff's vehicle proceeding north on Annie Street at Tecumseh Road through a green light.
While it is the plaintiff's position on this motion that the only person with direct knowledge of the manner in which this accident occurred is Sergeant Robert Boycott, the right for such an examination must fall within the general intent of r. 31.03(2) for its utilization.
On the information submitted, counsel for the Corporation of the City of Windsor in this instance elects to produce a clerk to answer the plaintiff's questions, and suggests that such individual can make himself knowledgeable as to the events.
[83] Cusinato J. also considered the relationship between the police board and the city (Atherton, at paras. 14-18). Cusinato J. stated that the city “is by statute vicariously responsible to the chief of police for the torts committed by members of the police force” (Atherton, at para. 19). Cusinato J. considered that (i) the sergeant was paid by the city; (ii) the city notified the Workers’ Board of the accident pursuant to its obligations as “employer”; (iii) the city remits pension benefits for members of the police force; and (iv) the city indemnifies the chief of police for all acts of police officers committed within the course of their employment (as the chief is vicariously responsible) (Atherton, at paras. 30-33).
[84] Cusinato J. referred to Gibson and noted that Eberle J. held that a chief of a hospital division was “examinable” (Atherton, at paras. 13-14).
[85] On the basis of the above evidence, Cusinato J. ordered the sergeant to be examined as a representative of the city.
[86] Consequently, the factors arising from Atherton are (i) the importance of the proposed non-corporate representative’s evidence and (ii) the role of the defendant corporation as actual or de facto “employer” of the proposed non-corporate representative or being vicariously liable for the acts of that proposed non-corporate representative.
e. Mr. Pallett Inc. v. Sadler & Van Santen Insurance Services Inc., [1998] O.J. No. 4928 (Gen. Div.) (“Mr. Pallett”)
[87] In Mr. Pallett, Master Clark ordered that the representative retained by the defendants to investigate a fire loss claim (Williams) be examined by the plaintiff. LHSC relies on this decision for the proposition that the extent to which there are “internal” matters at issue involving officers, directors, or employees who have or can obtain knowledge of the relevant evidence is a relevant factor for the court to consider on a motion to compel an independent contractor representative to be examined as a corporate representative on examination for discovery.
[88] Master Clark considered the decisions in Gibson, Atherton, and Silaschi. Master Clark reviewed that case law to determine whether, on the facts before him, it was appropriate to expand the definition of employee to include the investigator.
[89] Master Clark held that examination for discovery of Williams was appropriate since Williams was the sole source of knowledge about the fire loss investigation (Mr. Pallett, at paras. 12, 16, and 18):
[A]s regards conditions be [sic] found on the ground at the scene, and the pictures he took and the way he described the loss in his reports, it would be a foolish waste of time to examine Mr. Sabeau [the defendants’ proposed representative].
Furthermore, [the] central occurrence giving rise to the action, is an occurrence that is external to the corporate defendants. It was a fire, and all that these corporations know about it, is what they have been told by Mr. Williams.
But in the circumstances of this case, where Mr. Williams is the sole and only source of everything the corporations know about the case, (the only other source being documents that have in many cases been seen by Mr. Williams), Mr. Williams have can be considered an employee for purposes of oral discovery.
[90] Consequently, Master Clark ordered Williams to be examined on behalf of the corporate defendant. Master Clark held (Mr. Pallett, at para. 19):
While the ruling may appear to run contrary to the traditional and technical differences between an independent contractor and an employee (see Silaschi supra) in my view, it is a ruling that fits the circumstances of the case.
[91] However, Master Clark held that he would not have made the order if the issues in the case involved “internal” conduct of the defendants, and used the example of wrongful dismissal, which Master Clark held was an internal matter that could have been addressed by a representative of the corporation. Master Clark stated (Mr. Pallett, at para. 17):
I would have found differently, if the cause of action, or the central occurrence giving rise to the action was internal to the corporate defendants, such as in a case of wrongful dismissal. It would not, likely, be appropriate to all the plaintiff [sic] in a case such as that to examine an external negotiator retained to try to settle or mediate the case. Or, in the case of a breach of contract by the defendants, resulting from activities internal to the corporation board of directors or management, the proper person to discover would be someone on the board of directors, or a senior manager.
[92] Consequently, the decision in Mr. Pallett reiterates the importance of the exclusivity of evidence from the proposed external representative, but adds the related factor of considering the extent to which the issues in the litigation arise from an “internal” matter on which the corporation has a representative who could provide evidence.
2. Principles from the case law
[93] Despite the express terms of Rule 31.03(2)(a), the above case law establishes the general principle that the terms officer, director, or employee under Rule 31.03(2)(a) are not rigid terms limited to legal status. Independent contractors or other “non-corporate” individuals involved in the matters in dispute may be compelled as a corporate representative on discovery. However, such orders are not made unless the circumstances of the case justify the order, since as a general rule an independent contractor or other non-corporate individual ought not bind a corporation, as is reflected by (i) Rule 31.03(2)(a) which limits representatives to officers, directors, or employees, and (ii) Rule 31.11(1)(b) which allows a party to read in evidence from the examination for discovery against a person examined on behalf of the adverse party unless the trial judge orders otherwise.
[94] In exercising its discretion to compel an independent contractor or other non-corporate individual to attend as a corporate representative on examination for discovery, the above cases demonstrate that the court will consider factors such as (i) the extent to which the issues in the action arise from (a) external matters in which the proposed non-corporate representative is the critical witness such that corporate representatives cannot provide evidence on the issues or (b) “internal” corporate decisions involving corporate representatives who can provide or obtain evidence on the issues, (ii) whether the proposed representative acted as an independent contractor or employee at the material time, and (iii) whether there is a statutory duty on the proposed representative to provide the information sought on examination for discovery.
[95] No court in the cases relied upon by the parties considered whether the proposed non-corporate representative was a “better” representative with more knowledge than the proposed corporate officer, director, or employee. Such a proposition would be inconsistent with other case law under Rule 31.03(2)(a) that does not require the court to determine the “better” representative, but rather only to determine whether the representative selected by the examining party has sufficient knowledge of the events at issue (see Gibson, at p. 238, as relied upon by Dr. Robinson).
[96] Consequently, while the court must consider whether the proposed corporate representative has sufficient knowledge to be examined for discovery or is an appropriate person to obtain such knowledge, the prima facie representative under Rule 31.03(2)(a) of an officer, director, or employee should not be “amplified” because the non-corporate representative has “better” knowledge.
[97] The cases relied upon by the parties further demonstrate that the above factors are not limited and the court may consider any other factor relevant in the particular circumstances of the case.
Application of the law to the facts of the case
[98] The issue before the court is whether on the facts of this case, the terms “officer, director or employee” ought to be “amplified” to include Dr. Fisman as a representative of LHSC for the purposes of Rule 31.03(2)(a).
[99] This case has a mixture of factors which militate against and in favour of an order that Dr. Fisman be compelled to attend examination for discovery on behalf of LHSC. However, on balance I find that the factors demonstrate that Dr. Fisman should not be compelled to be a representative of LHSC for examination for discovery.
[100] I now review the factors against an order that Dr. Fisman be compelled to attend examination for discovery as an officer, director, or employee of LHSC.
[101] I accept the evidence of LHSC that others at LHSC were involved in many of the investigations and reviews related to (i) the use of the Fund and (ii) the investigations arising from the relationship between Dr. Fisman and Dr. Robinson. Mr. Davis has some direct knowledge and can obtain information from LHSC representatives given the involvement of LHSC and Medical Affairs in the events at issue in the litigation. Consequently, Mr. Davis would be a suitable representative for examination for discovery.
[102] Many of the issues in the action arise from internal matters on which LHSC would be expected to have, and does have, a representative who can provide a useful examination for discovery, a distinction raised in Mr. Pallett. Mr. Davis and Medical Affairs were involved in many of those internal issues.
[103] In particular, allegations raised by Dr. Robinson about (i) the conduct of LHSC in responding to the complaints about the Fund, (ii) the propriety of LHSC’s conduct as reviewed by the Ministry audit, (iii) the Workplace Investigation and its role if any with respect to the CPSO Investigation, (iv) the basis for the claim for damages to reputation (as was considered in the Workplace Investigation report), and (v) the alleged willful nature of LHSC’s conduct, all raise this matter beyond an “external” dispute between Dr. Robinson and Dr. Fisman about alleged harassment.
[104] The relevant legal test to amplify the term “officer, director, or employee” to include an independent contractor physician with privileges at a hospital is not whether Dr. Fisman is a “better” witness with “more” knowledge than Mr. Davis. The court must instead consider the extent to which the issues in dispute arise out of (i) internal matters in which a corporate representative with sufficient knowledge (or the ability to obtain such knowledge) is available or (ii) an external matter in which the proposed non-corporate representative is the critical witness and corporate representatives cannot provide evidence on the issues. Given the extent of internal issues raised in this case, it is not appropriate to amplify the term “officer, director, or employee” to include Dr. Fisman.
[105] Further, there is no statutory duty of Dr. Fisman to speak on behalf of LHSC, unlike the situation in Bell.
[106] The factor in favour of an order that Dr. Fisman be required to attend examination for discovery as an officer, director, or employee of LHSC is that Dr. Fisman was an employee of LHSC at the relevant time. LHSC defends the conduct of Dr. Fisman in its defence and has a “commonality of interest” as submitted by Dr. Robinson.
[107] However, a “commonality of interest” on its own ought not to be enough to justify the serious consequence of having an independent contractor bind a corporation, even if the independent contractor was an employee at the time of the events in dispute.
[108] This is particularly so in the present case since many of the events at issue in the claim focus on the CPSO Investigation, the Workplace Investigation, and the Ministry of Health audit. This is not the type of case as in Atherton in which the commonality of interest coexists with a critical need for discovery of the external representative on an external matter.
[109] I agree with the submission of counsel for Dr. Robinson that Dr. Fisman would be a likely witness at trial, with LHSC leading evidence from her as to the events at issue. I also agree with the submission of counsel for Dr. Robinson that LHSC has a commonality of interest with Dr. Fisman in its defence. However, those factors would have also existed in a “wrongful dismissal” claim in Mr. Pallett, and examination of a non-corporate representative was held to be inappropriate in Mr. Pallett if the action had arisen from such an “internal” matter.[^3]
[110] On the evidence summarized above, Mr. Davis can answer questions (either from his direct knowledge or from the knowledge of others at LHSC) about (i) LHSC’s response to the concerns raised by Dr. Robinson and the group of psychiatrists, (ii) the steps taken in the Workplace Investigation, (iii) the Ministry audit, and (iv) the CPSO Investigation. Consequently, Mr. Davis is a proper corporate representative.
[111] In light of the evidence supporting the knowledge of Mr. Davis and the numerous internal matters which are at issue in the action, I do not order Dr. Fisman to be examined as a representative of LHSC.
Order and costs
[112] For the reasons I discuss above, I dismiss the motion and order that Mr. Davis be LHSC’s representative at examination for discovery. Counsel for LHSC sought costs on a partial indemnity scale in the amount of $8,048.75, which I find to be reasonable given the importance of the motion, the numerous motion records filed, the thorough factums and briefs of authorities, and the costs incurred by Dr. Robinson. Consequently, I order Dr. Robinson to pay costs to LHSC in the amount of $8,048.75 inclusive of taxes and disbursements within 30 days of this order.
[113] I thank counsel for their thorough written and oral submissions which were of great assistance to the court.
Master Benjamin Glustein
DATE: October 22, 2013
[^1]: I refer to the department as “Medical Affairs”. [^2]: (who was VP Medical Affairs at the relevant dates) [^3]: A similar commonality of interest may have existed in Silaschi, since the architect was acting as the City’s representative on the project. However, Scott J. did not decide the case on this issue, as the court held that since the architect could never have bound the City, the architect ought not to be compelled for discovery even if the City’s corporate representative had no knowledge of the events at issue.