Watkins v. Toronto Terminals Railway

CV-13-484454

2014 ONSC 5553

ENDORSEMENT

Master R.A. Muir -

[1]. This is a motion by the defendants for an order removing the lawyer for the plaintiff. This is a wrongful dismissal action. The plaintiff also claims that she was subjected to harassment and other improper treatment while employed by the defendant Toronto Terminals Railway (“Toronto Terminals”). The plaintiff alleges that the defendant Jim Robbins (“Robbins”) was the individual responsible for the harassment. The defendants deny the plaintiff’s allegations.

[2]. The plaintiff’s lawyer is Ryan Watkins. Mr. Watkins is the plaintiff’s husband.

[3]. The defendants argue that Mr. Watkins may be called as a witness at the trial of this action. It is improper, of course, for a lawyer to be both counsel and witness.

[4]. The defendants have defended this action, in part, by arguing that the plaintiff actively sought to socialize with the Robbins while she was employed by Toronto Terminals. This socializing included a dinner at a restaurant with Mr. Watkins present and the suggestion that Robbins play golf with Mr. Watkins. The defendants also allege that the plaintiff sought the assistance of the defendants in finding a job for her husband within the defendants’ organization. The defendants argue that it seems implausible that the plaintiff would seek to socialize with the person who was harassing her or try to get her husband a job at such a business.

[5]. The test on a motion of this nature is set out in Master Glustein’s decision in Mazinani v. Bindoo, 2013 ONSC 4744 (Master) at paragraphs 60 and 61. I have considered this test in determining the issues on this motion. In particular, I have considered the so-called Essa[^1] factors set out at paragraph 61 of Mazinani.

[6]. I am not prepared to make and order removing Mr. Watkins as the plaintiff’s lawyer of record. I am not satisfied on the evidence before me that there is a significant likelihood that Mr. Watkins will be called as a witness. Any evidence he may potentially give will be limited to one meeting with Robbins at a restaurant. There is no dispute that the meeting took place. The only dispute appears to relate to whether the dinner was pre-arranged or not. The plaintiff acknowledges that no acts of harassment took place at the restaurant. Moreover, another employee of Toronto Terminals was present at the restaurant who can give evidence as to what transpired. The plaintiff will not be calling Mr. Watkins as a witness to contradict any evidence Mr. Robbins or the independent witness may give about the dinner. In my view, any evidence from Mr. Watkins regarding this encounter will be of very little importance and of limited probative value with respect to the matters in issue in this action.

[7]. Any other information Mr. Watkins may have regarding the matters in issue in this action is protected by section 11 of the Evidence Act, R.S.O. 1990, Chapter E.23 as spousal communications.

[8]. In my view, the important Essa factors on this motion are the likelihood of Mr. Watkins being called as a witness and the significance of his evidence. Both of these factors favour the plaintiff. The other Essa factors are neutral in my view.

[9]. For these reasons, the defendants’ motion is dismissed.

[10]. The plaintiff shall provide the court with her costs submissions by September 26, 2014. The defendants shall file their responding submissions by September 30, 2014. These costs submissions shall be delivered to the court by email.

September 24, 2014

Master R. A. Muir

[^1]: Essa (Township) v. Guergis, 1993 8756 (ON SCDC), [1993] O.J. No. 2581 (Div. Ct.)