Court File and Parties

COURT FILE NO.: CV-12-454827

DATE: 2014-04-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Robinson, Plaintiff/Appellant

AND:

London Health Sciences Centre and The University of Western Ontario, Defendants/Respondent

BEFORE: Matlow, J.

COUNSEL:
Matthew Wiltun, for the Plaintiff/Appellant

Emily McKernan, for the Defendant/Respondent, London Health Sciences Centre

HEARD: February 21, 2004, at Toronto

ENDORSEMENT

[1] This is an appeal from the order of Master Glustein dated October 22, 2013 dismissing the plaintiff’s motion seeking an order that the defendant, London Health Sciences Centre, ((“LHSC”) produce Dr. Sandra Fisman as its representative to be examined for discovery. LHSC opposed the motion before the Master and proposed that Bill Davis, its Director of Medical Affairs, be examined for discovery on its behalf.

[2] On April 16, 2014, I ordered that the appeal be dismissed and stated that written reasons would follow. These are those reasons.

[3] This action is brought by the plaintiff, a hospital psychiatrist, against the defendants, his former employees, for damages for the alleged constructive dismissal of the plaintiff. At the time of his alleged dismissal, Dr. Fisman was employed by LHSC as Chief of Psychiatry. As such, she was the plaintiff’s supervisor.

[4] The plaintiff alleged that he was constructively dismissed as a result of his objection to the manner in which Dr. Fisman administered an OHIP Stipend Fund for Ontario psychiatrists.

[5] At the time of the motion before the Master, although Dr. Fisman had privileges at the LHSC hospital, had an office there, was the chair of the Division for Adolescent Health and was otherwise affiliated, she was no longer employed by LHSC but carried out her functions as an independent contractor.

[6] In paragraph 52 to 54 of his reasons, the Master correctly stated as follows:

[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.

[7] After analyzing and applying the appropriate principles set out in those decisions as he considered himself bound to do, the Master exercised his discretion not to order that Dr. Fisman be examined for discovery.

[8] Although he was bound to do so, it should not have been necessary for the Master to conduct and apply that analysis. As he pointed out, Dr. Fisman did not fall into any of the categories set out in rule 31.03(2)(a) and was, therefore, not subject to being ordered to attend for examination for discovery on behalf of LHSC. The rule is clear, without any ambiguity in its language, and there was no proper reason for its provisions to be disregarded as they often are.

[9] Its restrictive language may, in some cases, result in persons otherwise suitable for examination for discovery being beyond reach of examination but violating the clear and express language of the rule by attributing to it a meaning that it does not have is not, in my view, an option open to our courts. The current practice, in my respectful view, although well intentioned, does not reflect well on our courts’ record in statutory interpretation and demonstrates the need for the amendment of the rule.

[10] Written submissions with respect to costs may be exchanged by counsel and delivered to me within 30 days of the release of these reasons. In default, no order will be made.

Matlow, J.

Date: April 28, 2014