SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-14-0109
DATE: 2015-09-01
RE: Michael Lemesani, Plaintiff, and
Lowerys Inc., Defendant
HEARD: August 27, 2015
BEFORE: Shaw R.S.J.
COUNSEL: Jordan R.D. Lester, for the Plaintiff
Dan Matson, for the Defendant
E N D O R S E M E N T
[1] This is an action for wrongful or constructive dismissal and breach of the Human Rights Code.
[2] The plaintiff conducted an examination for discovery of Scott Christie, an officer of the corporate defendant. The plaintiff brings a motion for leave to examine Andrew Christie, a second officer of the defendant.
[3] On September 30, 2014, after receiving no response from defendant’s counsel to inquiries about arranging a date for examination for discovery of a representative of the defendant, plaintiff’s counsel served a Notice of Examination, naming Scott Christie as the person to be examined, to be held October 27, 2014.
[4] Counsel for the defendant wrote back saying neither he nor Scott Christie were available on October 27, 2014. Counsel for the defendant said that he would canvas potential dates with his client. At that same time, counsel for the defendant demanded production of a complete copy of the plaintiff’s file with Sun Life respecting all claims for benefits made by the plaintiff.
[5] Production of the Sun Life file was made by the plaintiff on November 6, 2014. The file contains several hundred pages of documents, including notes of statements made by a representative of the defendant.
[6] Discovery of Scott Christie took place on January 20, 2015.
[7] During the discovery, defendant’s counsel advised that Scott Christie had not reviewed the Sun Life binder of documents. Scott Christie stated that he never had any conversations with Sun Life. He said that his brother, Andrew Christie, was more familiar with certain material issues and that Andrew Christie had spoken to Sun Life.
[8] The plaintiff now seeks leave to examine Andrew Christie on the Sun Life documents and on the communications he had with Sun Life, regarding the plaintiff.
[9] The defendant opposes producing Andrew Christie for discovery.
[10] Rule 31.03(2)(b) provides that the examining party may examine more than one officer, director or employee on behalf of a corporation, only with the consent of the parties or the leave of the court.
[11] Rule 31.03(4) provides that before making an order under clause 2(b), the court shall satisfy itself that,
(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience, and
(b) examination of more than one person would likely expedite the conduct of the action.
[12] The defendant submits that the plaintiff’s motion should be denied for three reasons.
[13] First, counsel for the plaintiff chose Scott Christie to be examined on behalf of the corporate defendant, having had the Sun Life documents and knowing the officer of the defendant with whom Sun Life had been communicating.
[14] Second, it is common for a representative of a corporation not to know everything about a claim. The proper course, it is submitted, is to ask for undertakings to questions which the representative cannot answer.
[15] Third, the plaintiff has not established that he is unable to get the information requested from Scott Christie because no undertakings regarding Sun Life were asked of Scott Christie.
Discussion
[16] I am satisfied that the plaintiff’s motion should be granted.
[17] A second examination is extraordinary and should only be permitted if the examining party can demonstrate that it cannot obtain the discovery to which it is entitled because the person being examined cannot provide the information.
[18] Although the plaintiff chose to examine Scott Christie when it served its Notice of Examination on September 30, 2014, it did so before the defendant demanded production of the Sun Life file.
[19] The defendant is correct when it submits that a corporate representative cannot be expected to know everything about a claim. However, the representative is also expected to inform himself or herself on issues that can reasonably be expected to arise on the discovery. In this case, the defendant had demanded production of the sizeable Sun Life file, presumably because the defendant believed the file was relevant to the issues between the parties. As such, it would have been reasonable for the defendant’s representative to have been prepared to answer questions pertaining to the file. The information was readily available to Scott Christie for his review before his examination.
[20] Because Scott Christie had not reviewed the Sun Life file prior to discovery, it would have been unproductive to ask him questions on the issues raised by the documents in the file, only to be met with multiple undertakings. In my view, it would have been an inefficient, ineffective use of time and money. See Metropolitan Toronto Condominium Corp. No. 979 v. Ellis-Don Construction Ltd., [1997] O.J. No. 353 (Master Clark), at paras. 7-8. It is not necessary, to succeed on this motion, for the plaintiff to have asked for undertakings on questions which Scott Christie knew beforehand were relevant, but had not prepared himself to answer.
[21] I am satisfied that to require the plaintiff to obtain the answers to questions on the Sun Life file by way of multiple undertakings, with the distinct possibility of further examination on those undertakings, would lead to undue expense and inconvenience. If the representative of the defendant with the best knowledge of the Sun Life matters, Andrew Christie, is examined, and if he has reviewed the Sun Life file in advance of his examination, the conduct of the action will likely be expedited.
[22] The discovery of Andrew Christie will be limited in scope and time.
[23] An order shall go granting leave to the plaintiff to examine Andrew Christie on behalf of the defendant. The discovery shall be limited to questions arising out of the production of the Sun Life documents relating to the long term disability benefit claim of the plaintiff. The examination shall not exceed 1.5 hours.
[24] It is expected that the parties will co-operate in arranging this examination on a timely basis.
Costs
[25] If the parties are unable to agree upon the costs of this matter (mindful that this was a procedural motion that was not complex), the plaintiff shall file written submissions, not exceeding three pages, exclusive of a bill of costs, within 30 days. The defendant shall file its responding submissions, not exceeding three pages, exclusive of any bill of costs it may wish to file for comparative purposes, within 15 days of receipt of the plaintiff’s submissions. Otherwise, costs shall be deemed to be settled.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
DATE: September 1, 2015
COURT FILE NO.: CV-14-0109
DATE: 2015-09-01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Lemesani, Plaintiff, and
Lowerys Inc., Defendant
HEARD: August 27, 2015
BEFORE: Shaw R.S.J.
COUNSEL: Jordan R.D. Lester, for the Plaintiff
Dan Matson, for the Defendant
ENDORSEMENT
Shaw R.S.J.
DATE: September 1, 2015
/mls