COURT FILE NO.: 06-CV-36313 DATE: May 09, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KEITH MURCHISON, Plaintiff AND: EXPORT DEVELOPMENT CANADA, Defendant

BEFORE: MASTER MACLEOD

COUNSEL: Paul Champ, for the Plaintiff, moving party Heather J. Williams, for the Defendant, responding party

HEARD: April 14 th , 2016

ENDORSEMENT

[1] This is a motion by the plaintiff to compel the defendant to produce certain documents for inspection. The court must determine whether the documents are relevant to the claim as pleaded and if so whether they should be released to the plaintiff. Even if the documents are found to be relevant the court may refuse to order production if the demand is unnecessary and disproportionate. The motion raises several important issues.

Background

[2] Keith Murchison has been involved in a long and protracted court case against Export Development Canada. Between 1979 and 1982 he was an employee of EDC. He alleges that he was an exemplary employee and left on good terms to take up employment in the private sector. In 1989 he apparently approached the president of EDC to discuss rejoining the organization. Mr. Murchison asserts that he was encouraged to apply for certain openings that existed at the time but he was not hired. Subsequently between 1990 and 2005 he applied for a further 17 positions at EDC but he was consistently unsuccessful. Mr. Murchison formed the conclusion that he had been blacklisted and he set out to discover why.

[3] Ultimately Mr. Murchison was able to determine that an official working for EDC had obtained his previous employment file from archives, had purported to consult former co-workers and had then made negative comments in his file. I should note that in the current statement of defence the defendant concedes that this occurred. The general manager of human resources did recover Mr. Murchison’s employment file from Library and Archives Canada. He did review the performance reviews that were contained in that file. He did speak with five employees of the defendant who said they were familiar with the plaintiff and he did make notes of what he considered to be negative comments which he then placed in the employment file before returning it to archives. The defendant also concedes that it was this general manager who interviewed Mr. Murchison in 1998 and concluded that he was not suitable for any of the positions available at that time.

[4] Mr. Murchison categorizes the comments placed in his file by the general manager of human resources as false inaccurate, misleading and unfair. It is his contention that these actions were either negligent or malicious and that the negative comments had the result not only of denying him employment in 1989 but also that he was rejected on every other occasion when he applied for employment with EDC thereafter. He claims that these actions were tortious with the result that he was wrongfully excluded from the opportunity of reemployment with EDC. He seeks significant damages based on the salary and benefits to which he would have been entitled had been successful in any one of the 18 positions for which he applied between 1989 and 2005.

[5] I need not detail the long and tortuous history of the litigation. Mr. Murchison commenced this action in 2006 and he also brought proceedings in the Federal Court. [1] There have been numerous motions and case conferences. Through most of this period, Mr. Murchison represented himself but he eventually retained counsel. This resulted in amendments to the statement of claim and the current pleading dates from April 2015.

[6] Numerous defences were advanced. Firstly the defendant asserts it was quite within its rights to inspect the former employment file and to make inquiries with former co-workers. It denies that the comments contained in the notes are inaccurate or unfair. It also denies that the file was ever reviewed subsequently and denies that the notes had anything to do with Mr. Murchison’s subsequent failure to obtain reemployment with EDC. In any event, the defendant denies there is any duty of good faith or fairness to prospective employees which is recognized at law. The defendant denies that any person unsuccessfully competing for employment has the right to sue the prospective employer.

[7] For purposes of this motion, it is important to note that the current statement of defence includes the assertion that the defendant’s decision not to reemploy the plaintiff had nothing to do with the contents of his employee file and had “everything to do with the plaintiff’s qualifications and suitability for the available positions particularly in relation to the other candidates”. The pleading also contains the allegation that the plaintiff “was not the most qualified or suitable applicant for these positions and was not offered any of them”.

The Motion

[8] The plaintiff now seeks three categories of documents. Firstly the plaintiff seeks production of the employment applications for each of the successful candidates for each of the positions he applied for. Secondly the plaintiff seeks any notes or other documents which exist documenting the assessment and selection of the successful applicants. Finally the plaintiff seeks documents relating to the annual remuneration of the successful applicants inclusive of bonuses and benefits from the date of hire to the present. All of these are resisted by the defendant on the basis of relevance, protection of individual privacy, and proportionality.

[9] When this motion was originally contemplated the court created a timetable. Just prior to the hearing of the motion the defendant filed a motion record with a brief affidavit. That affidavit was sworn on March 31, 2016 which was well beyond the date established by the timetable and well beyond certain extensions which had been agreed to by the moving party. The plaintiff asks that the affidavit be excluded or that it be given no weight. I agree that timetables are to be respected and I certainly would be prepared to grant an appropriate remedy if the last minute service of this affidavit appeared to be unfair or unjust. Ultimately however it was unnecessary for the defendant to rely upon the affidavit and my decision is not contingent on that evidence.

[10] In an attempt to reduce the scope of relevance by narrowing the issues, the defendant undertakes to amend its pleading. Specifically the defendant proposes to withdraw the allegation that the plaintiff was “not the most qualified or suitable applicant” for the positions and also proposes to withdraw the allegation that the decision not to employ the plaintiff “had to do with his qualifications in relation to the other candidates”.

Analysis - Relevance

[11] Any decision about production of documents must begin with the question of relevance. Relevance of course means something more than being vaguely relative to an issue in dispute. In the context of a civil proceeding there is a utilitarian aspect to the analysis. The question is whether a document is one which could be admitted into evidence and which might assist a party to establish or rebut a material allegation. [2]

[12] As summarized above, it is the plaintiffs allegation a manager with EDC negligently or maliciously placed inaccurate information in his file and that the consequence of this action was to secretly and unfairly blacklist him from employment. This is denied by the defendant. It is the central allegation in the litigation. Unless he is successful in proving this allegation, the plaintiff has no case at all. The defendant acknowledges that the notes were put in the plaintiff’s file and acknowledges that the information contained in those notes was used in assessing the plaintiff’s candidacy for the first of the several job applications he submitted. The defendant states that no one else looked at the employment file and the negative information in the archived employment file was not the reason that the plaintiff was subsequently rejected for all of the positions he applied for.

[13] The plaintiff is entitled to challenge this evidence. While he recognizes there is a subjective element to assessment of the best candidate for a position, he expects that review of the applications submitted by the successful candidates on each occasion will show that in general he was far more qualified than those who were selected. If that is correct he will ask the court to infer from the number of times his application was rejected that there must have been reliance on the negative (and he says false) information placed in his employment file.

[14] In order to be successful in this argument, the plaintiff would have to demonstrate what qualifications, experience and personal attributes were possessed by the successful candidates in comparison to his own. This is the relevance of the application package from the successful candidate. If notes or records were maintained by those involved in the selection process they would also be relevant. It will be important to understand whether or not the negative impression documented in the archived file continued to colour the application process.

[15] As set out in paragraph 10 above, the defendant seeks to narrow the issues by undertaking to amend its pleading. It seeks to eliminate the relevance of these documents by withdrawing the allegation that the people selected were more qualified than Mr. Murchison. Let me say at once that when it is appropriate to do so, parties should be encouraged to narrow the issues and therefore to curtail unnecessary production and discovery. In fact I ruled favourably in such a situation recently. [3]

[16] As I also observed in that decision, the court must be alert to ensure that by making a minor admission a party is not able to shield itself from appropriate and necessary discovery. [4] Even if the defendant withdraws the paragraphs in its pleading, the plaintiff still requires the information about who was actually hired in each case so that he may seek to demonstrate that something nefarious was afoot.

[17] In order to render this evidence irrelevant, the defendant would have to go further than withdrawing the allegation that the plaintiff was not the most qualified candidate. As I read it, the defendant is not prepared to admit that it made a corporate decision to exclude the plaintiff from future consideration based on the assessment of the manager who made the notes in the archived file. In fact it denies that any subsequent hiring committee reviewed the file.

[18] It may well be that if they made such an admission the plaintiff would still be unsuccessful. The court may well hold that no duty is owed by an employer to a prospective job applicant and may hold that the plaintiff has no right of action. I cannot however decide the question of relevance based on skepticism about the strength of the plaintiff’s case. As pleaded, even if the defendant amends its pleading, the central issue is whether or not there was illegitimate information used to deny the plaintiff a fair chance at employment.

[19] In order to prove this one way or the other, the plaintiff needs to know who was hired and how their applications compared with his own. He needs disclosure of what considerations were employed in selecting the successful candidate on each occasion. In order to demonstrate his potential damages he requires payroll information to show what he might have earned. On a relevance test, this information is highly relevant.

Analysis - Objections

[20] The defendant deals separately with the three categories of documents. Dealing firstly with the applications of the successful candidates, the defendant points out that this category of documents was not requested at the discovery of EDC conducted by the plaintiff. To this the plaintiff simply responds that these are relevant documents that should have been included in the affidavit of documents and the plaintiff was not represented at the time of the discovery. I agree that the relevance of these applications is manifest and in my view the failure to request the documents at discovery is not fatal.

[21] The more significant objection is one based on proportionality. The defendant argues that this is an unwarranted intrusion into the individual privacy of the employees who obtained the positions. This is information that the Privacy Act requires the defendant to protect and though the Act provides that the employer may produce the private information if ordered to do so, the court should not trammel on these privacy interests lightly.

[22] Protection of individual privacy is indeed an important interest of the justice system but it is not an interest that rises to the level of a privilege. The truth seeking function of the justice system frequently requires production of confidential information even information about parties who are not themselves litigants. Of course there are tools to protect that information. Firstly any such information produced to the plaintiff is subject to the deemed undertaking. It may not be used for any purpose other than the litigation. Secondly, the information sought here which would generally be the information contained in the resumes of job applicants is not as sensitive as other information such as health records. Thirdly, if the deemed undertaking is insufficient protection, the party making production could seek confidentiality orders and sealing orders. The need to use such tools is not grounds to refuse production of relevant documents.

[23] With respect to the “category B documents”, that is the documents relating to assessment of the candidacy of the successful candidate, the defendant states that it has already produced any such documents it has been able to locate dealing with assessment of the plaintiff’s application. It states that there are no additional documents and if there are documents relating to assessment of other candidates, they should not have to produce them. I agree that the most relevant documents would be assessment of the plaintiff’s own application but I also agree that the documents relating to assessment of the successful candidates would be relevant by comparison. If they exist they should be produced. If they do not exist, they should be listed in Schedule C to the affidavit of documents.

[24] I agree with the defendant that it is not necessary or relevant to disclose all of the documents which may exist in relation to all of the candidates that applied for each of the positions. My order would be restricted to the plaintiff and to the successful candidates.

[25] With respect to the “category C” documents, that is the documents relating to pay and benefits, the defendant objects to producing individual employment histories and payroll records for each successful candidate for their entire employment with the defendant. This is for two reasons. Firstly is the concern for individual privacy and secondly is a concern for complexity because of the number of factors which might have influenced the career path of each individual.

[26] Pursuant to an earlier order made by me, the defendant has produced information about salary ranges and incentive payments for positions within EDC. It now proposes to do the same for benefits. In my view this should be sufficient information and I have no evidence to demonstrate that individual salary and benefit histories for 18 individuals would be more helpful than such aggregated information. Accordingly I accept the proposal of the defendant with respect to production of benefit information.

Conclusion and Summary

[27] In conclusion, the defendant is to produce the “Category A” documents including the application packages for the successful candidates for each of the positions the plaintiff applied for. The defendant is also to produce the “Category B” documents relating to the process of screening and selecting the successful candidate and rejecting the plaintiff if such documents exist and have not already been produced. In the event those documents existed but are no longer available then they are to be properly listed in Schedule C to the affidavit of documents. With respect to the “Category C” documents, the proposal of the defendant to produce employee benefit information to supplement the salary and incentive information already provided appears acceptable.

[28] I may be spoken to regarding the form of a confidentiality order if necessary.

[29] I may also be spoken to regarding costs.

Master MacLeod

[1] See Murchison v. Export Development Canada 2009 FC 77 [2] See for example Merpaw v. Hyde 2015 ONSC 1053 cited by the defendant [3] See Sproule v. Tony Graham 2015 ONSC 2976 [4] Supra @ para 34