Cacciato v. Grégoire, 2015 ONSC 4751

COURT FILE NO.: CV-11-51511

MOTION HEARD: 20150526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Susan Cacciato, Plaintiff

AND:

Sylvie Grégoire, Defendant

BEFORE: Master Pierre E. Roger

COUNSEL:

Brenda Hollingsworth, counsel for the Plaintiff

Marie Lampropoulos, counsel for the Defendant

Julie Sicotte, counsel for the University of Ottawa

HEARD: May 26, 2015

REASONS FOR DECISION

[1] This motion first came before me on March 5, 2015. I found the materials insufficient and adjourned the motion to May 26, 2015, on terms outlined in my endorsement dated March 9, 2015.

[2] In my endorsement of March 9th, I ordered that the defendant could conduct additional examination for discovery of the plaintiff relating to the harassment complaint of the plaintiff by a co-worker at the University of Ottawa. This examination was conducted later in March 2015. The order was very specific about what the plaintiff was required to answer. Particularly, the plaintiff was to answer all questions relating to her knowledge of the complaint, to provide the names and addresses of all persons who might reasonably be expected to have knowledge of her being harassed and to answer questions relating to any related difficulty at work. As well, the defendant was ordered to serve a request to admit, incorporating questions relating to the plaintiff`s harassment complaint. The purpose of that endorsement was to allow for better materials to be filed if the parties could not find their own solution as a result of the ordered process.

[3] The motion returned on May 26th. The defendant seeks: production of the complete and un-redacted file relating to the harassment complaint the plaintiff initiated against a co-worker at the University of Ottawa, including the names and contact information of witnesses; an order compelling the non-party, the University of Ottawa, to produce its file regarding the harassment complaint; and an order that the plaintiff re-attends at examination for discovery. The plaintiff brought a motion seeking leave and an order compelling the defendant to attend examination for discovery.

[4] The plaintiff’s motion was not opposed and an order was made on May 26, 2015, ordering the defendant to attend at an examination for discovery on June 15, 2015, with no costs for this motion. It was understood that the plaintiff would not seek to strike the defendant`s statement of defense if the defendant could not be located provided the defendant, through her counsel and insurer, made best efforts to serve and ensure compliance or attendance by the defendant.

[5] This action arises following an automobile accident on June 8, 2009, in Ottawa. The defendant has admitted liability, subject to policy limits. Damages are in issue.

[6] The statement of claim seeks significant damages, including damages for past and future loss of income. Following the accident, the plaintiff was off work, from her position as a veterinary technician at the University of Ottawa, for about two weeks. She then went back to work, working half days and back to full time hours in November or December 2009. She was acting chief veterinary technician and oversaw two employees. However in October 2010 she stopped working and has been on long term disability since March 2011.

[7] In her examination for discovery of April 2013, the plaintiff explained that in October 2010 she was having problems coping with work, home life, headaches and pain. She was asked whether there were any special circumstances at the University of Ottawa that were also contributing to her stress levels (it was brought to her attention that her personnel file made reference to a harassment complaint). She explained that an incident happened in August; that she made a complaint after the September long weekend, after which her counsel objected.

[8] There is evidence, from clinical notes and records, that the plaintiff was stressed at work in part due to her work environment. The defendant seeks to explore a connection with incidents that occurred in June, August and September 2010, following which the plaintiff filed a harassment complaint against a co-worker at the University of Ottawa.

[9] The plaintiff provided to the defendant a redacted copy of the harassment complaint final report, with names blocked out. With the exception of names, the factual background and information about the complaint is provided in the redacted document.

[10] The redacted report indicates that the plaintiff was experiencing difficulty with a co-worker. He accused her of under-performing at work. She alleged that this co-worker became angry with her work, including how she cleaned and kept cages, and accused her of animal abuse. The co-worker denied this. However, independent witnesses at work supported the plaintiff’s versions of events and the independent investigator retained by the University concluded in favor of the plaintiff: that the behaviour and verbal responses of the co-worker were excessive and unwelcomed and that management breached its obligation to ensure a safe, healthy and respectful workplace. The investigator indicated that some staff were afraid and some were intimidated by this co-worker. The report identifies third-party witnesses but the names are blocked out in the redacted version provided.

[11] During her March 2015 examination for discovery, the plaintiff identified witnesses to these events but could not remember the last name of three witnesses or people she worked with. She confirmed that she was responsible for two employees and identified their first name but did not remember their last name nor did she know their contact information. She however undertook to provide that information (page 104). Of the 11 names provided, three were missing a last name which was not provided by the time the motion was argued.

[12] She was asked to identify the name of other people that she worked with and she provided that information with an undertaking to provide missing last names. It was however clear that she would likely not remember missing last names nor contact information and that this would have to be obtained from the University of Ottawa.

[13] She described an incident with this co-worker in February 2009. The co-worker was unhappy that his microscope had been moved and lashed out at the two employees that she was supervising. This was reported to her supervisor. She described another incident on June 30, 2010, and another on August 19, 2010. The co-worker was upset and indicated that he was going to report her for animal abuse. She indicated that he was verbally abusive to her.

[14] She indicated that on September 1, 2010, she wrote a statement of what happened during the August event (page 134). She also indicated that Danielle Dewar, who was working in an adjacent room, documented the incident on her computer as it was occurring. Ms. Dewar told her she had heard the altercation and made a contemporaneous record of it.

[15] At her discovery, the plaintiff indicated that she was not afraid of this co-worker but rather was irritated with him (p.134) because he would have “little meltdown”.

[16] She confirmed that she filed her formal complaint after the September 2010 long weekend. The plaintiff refused to provide a copy of her complaint and copies of notes describing the event of August 2010 on the basis that they are privileged. However, counsel for the plaintiff made it very clear (see page 151) that although she took the position that the documents are protected by privilege, the information contained therein is not and the plaintiff would disclose all information contained in those documents. This was not pursued by counsel for the defendant who indicated “I’m more interested in the, you know, the statements of allegations.” (See page 152). The name of the investigator was disclosed (Mr. Fernand Lalonde). She explained that her complaint documents were given to human resources, who provided them to Mr. Lalonde. She explained that she met with Mr. Lalonde thereafter in an interview. Counsel for the plaintiff objected to questions about the process and objected to whether the plaintiff provided the investigator with a statement directly, although some of these were later answered in answers to undertakings. No other questions were asked about when and in what circumstances documents were generated.

[17] At the hearing of this motion, the University admitted that it has no evidence as to how and when documents were generated. It admitted that the co-worker no longer works at the University.

[18] Significant productions were provided by the plaintiff to the defendant (apparently 14 volumes). At the additional examination for discovery of the plaintiff, on March 30, 2015, the plaintiff produced an additional employment file that was located by the University of Ottawa following the motion. Answers to undertakings were provided by the plaintiff by letters dated April 30 and May 1, 2015.

[19] On April 17, 2015, the defendant served a request to admit dealing with the information contained in the redacted harassment report. The plaintiff served her response to request to admit on April 28, 2015. Looking at both, although many facts were not admitted, the truth of most facts was admitted at least sufficiently to establish that the plaintiff was having issues at work: the co-worker expected a lot; staff was subject to harassment and intimidation from the co-worker; confrontations with him became more heated, intense and aggressive; staff did not want to work with him; she was annoyed with him; a confrontation with two technicians occurred on February 19, 2010, and some information about it is admitted; the plaintiff was involved in a confrontation with the co-worker on August 19, 2010 – most facts are admitted: he banged on the door…; she was involved in another confrontation on September 1, 2010 – he approached her about an empty water bottle, was really angry and became increasingly upset, she was trying to get away from him and he was blocking her way…; she took pepper spray to work; she filed a complaint in September 2010; and had complained about him on other occasions. The plaintiff refused to admit the report’s conclusions, claiming privilege.

[20] The plaintiff did not swear an affidavit for this motion, a law clerk at her lawyers’ office did. The law clerk explains that in March 2014, counsel for the defendant requested a copy of the final report issued by the University of Ottawa in relation to the plaintiff’s harassment complaint. In her letter, defendant’s counsel indicates: “Please provide us with this document (redacted for confidentiality, if required) as soon as possible.” A redacted report was thereafter provided. She states: “I am advised by the plaintiff and do verily believe that she was told during the investigation that the witness interviews were confidential.” She states further that she is advised by the lawyer responsible for this matter that the report was produced only because the defendant agreed it could be produced redacted.

[21] The University of Ottawa filed an affidavit, sworn by the associate director, health and wellness in human resources. The affiant indicates that it is the practice and procedure of human resources that when these types of reports are made by members of the University, they are treated in confidentiality. She indicates that the protocol is to advise an enquiring employee of the University that all communications with human resources are confidential. No information is provided in her affidavit about what was told to the participants in the investigation of the complaint filed by the plaintiff. No affidavit is provided by any of the participants. The affiant explains that the harassment complaint, investigation and outcome are kept separate and apart from the employee’s human resources file in a file marked confidential and found in a separate system. She explains further that the complaint of the plaintiff proceeded under the draft policy which provided, at paragraph 16, the complaints of harassment or discrimination would be treated in a confidential manner and in accordance with the Freedom of Information and Protection of Privacy Act (FIPPA). She adds that: “The promise of confidentiality … serves the community as a whole by contributing to the effective functioning and safety of the University and is essential to the integrity of the process, and for the purpose of day-to-day administration of the University.” And further: “If the communications generated from the investigative reports are disclosed … I believe there could be a chilling effect as potential complainants may not report harassment… Further, respondents to complaints would not want to participate in this process nor would potential witnesses.”

[22] The defendant’s affidavits are sworn by his lawyers. They provide general background information about the nature of the action, the pleadings and some of the documents produced. They point out some contradictions, including that the complaint indicates that the plaintiff was extremely stressed and uncomfortable at her workplace when the co-worker was around, yet in her response to request to admit she denies the truth of a similar statement indicating that she was very irritated with the co-worker but did not feel bullied, harassed or intimidated. They point out that at her discovery she stated that she was never afraid of him when he was yelling, she was merely irritated and impatient. They indicate that the plaintiff’s formal complaint was filed after the September 2010 long weekend, that she was thereafter interviewed by the investigator, that she objected to questions about the interview and refused to admit the conclusions of the investigator. They further indicate that this is relevant to issues of damages and that it would be unfair to require the defendant to proceed to trial without having discovery of the complete and un-redacted file of the plaintiff’s harassment with the names and contact information of the witnesses involved.

[23] At the hearing of the motion, on May 26, the court was provided with the documents listed at schedule B to the plaintiff’s affidavit documents and with the documents over which the University of Ottawa claims privilege.

[24] There is no question that information relating to the harassment complaint and how this impacted the plaintiff at work is relevant to damages (including to psychological damages, loss of income and causation) and not protected by any privilege or any confidentiality that would prevent its disclosure in the context of this action. As indicated in my earlier endorsement, the plaintiff’s difficulties at work, if any, including the general atmosphere at work are relevant to damages and not protected by any privilege. Similarly, the plaintiff’s knowledge, information and belief about this, including the names of affected co-workers and witnesses is relevant and not protected by any privilege. The issue is whether the documents, part of the harassment file at the University of Ottawa, are protected by privilege? These are essentially: the un-redacted final report of the investigator; the allegations of the complainant; the written response to the complaint from the respondent co-worker; and documentary evidence provided by the complainant and the respondent consisting primarily of emails.

[25] Rule 30.02 of the Rules of Civil Procedure provides that every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed, subject to privilege.

[26] Rule 30.10 provides that the court may order production of a document that is in the possession, control or power of a non-party and is not privileged where the court is satisfied that: (a) the document is relevant to a material issue in the action; and (b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[27] As indicated above, the documents sought are relevant to a material issue in the action: damages, including loss of income. They relate to the plaintiffs difficulties at work and, as such, to whether these difficulties were related to the injuries sustained in the accident or to issues with a co-worker (the subject of her harassment complaint).

[28] Are the documents privileged?

[29] The documents are protected under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, C. F31 (FIPPA). However, their confidentiality under that act and under the policies and guidelines of the University must not be confused with the civil discovery process. These are separate and distinct from one another. Indeed, neither FIPPA or the policies and guidelines of the University prevent court ordered disclosure.

[30] In the context of the ongoing civil action, privilege is claimed by the plaintiff under Wigmore. The common-law privilege under Wigmore is available if four fundamental conditions are met ( see: Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254 at para. 260):

1. the information or communications must originate in a confidence that they will not be disclosed;

2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;

3. the relation must be one which in the opinion of the community ought to be sedulously fostered;

4. the injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[31] All four conditions are required.

[32] I am not satisfied that the evidence presented on this motion establishes, on a balance of probability, that the communications originated in a confidence that they would not be disclosed.

[33] The plaintiff did not swear an affidavit. The University admitted that it did not contact the witnesses to ascertain their expectation regarding the confidentiality of the information. In fact, in relation to one of the witnesses (Dewar), the University admitted at the motion that there was no evidence that this witness had an expectation that the communication would not be disclosed. I reviewed the documents and note that some of the documents pre-date the complaint and its process, further contradicting that the information originated in confidence that it would not be disclosed. The bold statements provided by the law clerk acting for the plaintiff and by the manager of the University are simply, in these circumstances, not convincing.

[34] Wigmore is therefore not applicable.

[35] The next question to be determined, under rule 30.10 (1), is whether it would be unfair to require the moving party to proceed to trial without having discovery of the documents.

[36] The defendant argues that it would be unfair to require her to proceed to trial without discovery of these documents. She argues, amongst others, that not all witnesses have been fully identified, that this could delay the trial and that the documents are required to explore possible contradictions between earlier statements and present recollection. She also argues that damages sought are significant, which requires disclosure in these circumstances as a proportionate effort.

[37] In assessing fairness, I am guided by a decision of the Court of Appeal in Ontario (Attorney General) v. Ballard Estate, 1995 CanLII 3509 (ON CA), 1995 Carswell Ont 1332.

[38] In that decision, the court indicated that when considering fairness, the court must be guided by the policy underlying the discovery process. Disclosure is not required from non-parties unless required by this rule which “… assumes that requiring a party to go to trial without the forced production of relevant documents in the hands of non-parties is not per se unfair.” It notes that the discovery process must be kept within reasonable bounds. This is certainly a recurrent and still relevant goal. In fact, this continuing effort to streamline discovery led to recent amendments to the rules aimed again at achieving this elusive pursuit of ensuring that the discovery process is efficient and proportional.

[39] At pages 7 to 9 of its decision, the Court of Appeal lists factors that should be considered during such a motion, which include (noting that the burden of showing unfairness rests on the moving party):

• the importance of the documents in the litigation;

• whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness;

• whether discovery of the party with respect to the issue to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the party examined or the party examining;

• the position of the non-parties with respect to production;

• the availability of the documents or their informational equivalent from some other source which is accessible to the moving party;

• the relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interest are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation;

• when considering these factors, the court may inspect the documents as provided by rule 30.10 (3).

[40] I have reviewed the documents to assess the factors listed above and conclude, on balance, that the above factors favor the defendant: that it would be unfair to require the defendant to proceed to trial without having discovery of these documents.

[41] The documents are important and their production at trial would unnecessarily delay the trial of this action. These factors are important and go “…a long way to demonstrating that it would be unfair to require the party to proceed to trial without production of those documents” (see Ballard Estate).

[42] Although I agree with the plaintiff that the defendant could have obtained some additional information through more efficient discovery, this is outweighed by the importance of the documents, their number and relevance to material issues. The defendant would otherwise have to proceed to trial without these documents, calling some of these witnesses and slowly obtaining some of these documents at trial. This would not be an efficient use of trial time as it would invariably lead to adjournments and delays. The documents sought are readily available, requiring no additional efforts on the part of the non-party, such that the factors outlined at rule 29.2.03 also favor disclosure.

[43] Requiring such disclosure keeps discovery within reasonable bounds, considering the material issues surrounding her ability to work and important damages sought by the plaintiff.

[44] Consequently, all of the plaintiff’s Schedule B documents are to be produced to the defendant forthwith, un-redacted.

[45] Although the Schedule B documents listed at the plaintiff’s affidavit of documents appear comparable to those produced by the University of Ottawa, in order to ensure that all relevant documents are produced, the University of Ottawa shall as well forthwith disclose to the defendant all of its documents, as per its list of documents and documents produced to this court, un-redacted (with the exception of document no. 6 which may be produced as is, considering the extent of the information otherwise disclosed).

[46] All documents produced above are, as specifically provided by the Rules of Civil Procedure, subject to the deemed undertaking confirmed at rule 30.1. This should provide some reassurance to the University and to the participants in the investigation process.

[47] If requested by the defendant, the plaintiff shall be available for and attend a brief examination for discovery, limited to issues arising from the documents hereby ordered produced and not previously examined upon. Three hours should be sufficient considering the examinations conducted, the request to admit and the information disclosed in these documents.

[48] If the parties are unable to agree on the costs for this motion and that of March 5, 2015, brief written submissions limited to two pages with a cost outline shall be provided to my registrar by email : by the defendant, within the next 10 days and by the plaintiff, within five days of receiving the defendant’s submissions. The University is not required to make any submissions on costs unless costs are sought against it, in which case the University shall file responding submissions on costs within five days of receiving defendant’s submissions.

Master Pierre E. Roger

Date: July 27, 2015