Curcic v IBM Canada Limited

Court File and Parties

COURT FILE NO.: CV-15-531371 DATE: 20160613 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dusan Curcic, Plaintiff – AND – IBM Canada Limited, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Arleen Huggins, for the Plaintiff Kimberly Pepper, for the Defendant

HEARD: June 13, 2016

Endorsement

[1] The examination for discovery of the Defendant’s representative, Linda Hagans, was held on November 13, 2015. There were a number of refusals given on that examination. The Plaintiff moved to compel answer to the refusals and to compel the Defendant to produce a sworn supplementary affidavit of documents. That motion was heard by Master McAfee on March 14, 2016.

[2] The Master ordered that a number of refusals be answered, that a sworn supplementary affidavit of documents be produced, that Ms. Hagans attend for continued examination on those answered refusals for 30 minutes, and that the Defendant pay the Plaintiff’s costs of $2,500. The Defendant appealed the Master’s ruling, which appeal was heard and dismissed by Pollak J. on May 17, 2016.

[3] Despite the fact that there was no stay of Master McAfee’s order, the Defendant did not comply with it pending the appeal. In scheduling the appeal, the Defendant apparently took its time and chose the third of the three available dates offered by the court. Subsequent to the dismissal of the appeal by Pollak J., the Plaintiff continued to request compliance with the order and the Defendant continued to delay that compliance. Only after some testy correspondence did the Defendant provide answers to the refusals (with the possible exception of Refusal #3, which is discussed below), deliver the supplementary affidavit of documents, and pay the outstanding costs. The parties have agreed that the continued examination of Ms. Hagans will take place on June 15, 2016.

[4] The Plaintiff has brought a motion for contempt based on the Defendant’s failure to comply with Master McAfee’s order. As indicated above, it is now only Refusal #3 that is in issue.

[5] The Defendant seeks an adjournment of the motion. Counsel for the Defendant submits that she needs to respond in detail to the motion and to cross-examine the Plaintiff’s deponent in order to properly defend her client. She also states that the Defendant was served on short notice with this motion, and that a contempt motion ought not be heard without proper notice.

[6] Counsel for the Plaintiff points out that the motion materials are virtually identical to the materials that were before Master McAfee and Pollak J., and that there is nothing new here to which the Defendant needs to respond that it hasn’t responded to already twice before. Plaintiff’s counsel also points out that the Plaintiff’s deponent is an associate at her law firm, and that his affidavit simply summarizes the proceedings to date and attaches the relevant documentation. He has no further substantive knowledge. Counsel also points out that that the Defendant technically got six days’ notice of this motion instead of the required 7 days only because service of the motion materials was 15 minutes late and so is counted as the following day.

[7] It is difficult to not see the request for an adjournment as a delay tactic on the Defendant’s part. This is a wrongful dismissal action, and the Plaintiff is an unemployed litigant going up against the Canadian subsidiary of one of the world’s largest corporations. Counsel for the Plaintiff states quite emphatically that the Plaintiff is being worn down with litigation expense.

[8] That said, I do not think that a contempt motion should be considered on short notice – even if the shortness of the notice is a mere technicality. Counsel for the Defendant submits that while she is prepared to argue the question of whether Refusal #3 has been complied with, she is not prepared to argue on the basis of a request for a contempt order against her client. That would require a different and more detailed type of response.

[9] Accordingly, while I am not inclined to consider a contempt order at this stage, I do think that procedural justice requires the matter of the controversial refusal to be dealt with. I therefore heard the matter on the merits of that issue, without hearing submissions on contempt of court.

[10] Refusal #3 involves a side-by-side analysis of the Defendant’s own employment benefits and pension plans with that of Embross, a company that took over some of the Defendant’s employees. At discovery, before Master McAfee, and before Pollak J., the Defendant took the position that this analysis is not relevant to the action. Master McAfee disagreed and ordered it produced, and Pollak J. upheld that ruling. On May 30, 2016, counsel for the Defendant provided counsel for the Plaintiff the answers to the outstanding refusals, and for the first time took the position that, “There was no documentation prepared by IBM regarding a side-by-side analysis/comparison.”

[11] Needless to say, I cannot order the Defendant to produce what it does not have. However, the Defendant’s answer strains credulity. The transcript of Ms. Hagans’ examination for discovery is specific in that she states that the very comparison in question was in fact done in February or March, and that Ms. Hagans herself was involved in that process. She specifically states that, “We look at compensation, any bonus structure, overall benefits including things like ADP and other sort of ancillary benefits, pension, so those are some of the key elements.” When pressed, she acknowledged that she is talking explicitly about this particular deal, and is not referring generally to what the Defendant usually analyzes.

[12] Defendant’s counsel says that although Ms. Hagans conceded that the side-by-side analysis was done, she did not say that any documents were produced during that analysis. Counsel also explains that the analysis was done on a multinational basis within the Defendant, and so files in the United States as well as Canada pertain to this transaction and had to be searched.

[13] With respect, it is hard to believe that a detailed analysis of two corporations’ respective employee benefit and pension plans was done without any paper. If that were the case, Ms. Hagans, who stated that she was personally involved in the process, would have to have committed all of the relevant comparative information to memory. While this might be possible if she has the kind of photographic recall that can hold several Excel or other spread sheets in her mind and run through a comparison of the data on each of them without writing anything down, it would be a remarkable feat. I suppose this total recall will be tested in the upcoming continuing examination on June 15th.

[14] Given that the continuing examination was envisioned as being a brief chance to clarify anything that comes out of the answered refusals, Master McAfee set it down for 30 minutes. The Master obviously did not foresee an answer of the type that the Defendant has given the Plaintiff, as it was not the Defendant’s position at any previous stage that the documentation sought by the Plaintiff does not exist. Counsel for the Plaintiff makes the cogent point that with the new position taken by the Defendant, more time will be required for the continuing examination of Ms. Hagans. I agree, and would extend the time for the continued examination on June 15, 2016 from 30 minutes to 90 minutes.

[15] Ms. Hagans shall re-attend at the examination for discovery on June 15, 2016 in order to answer questions with respect to the refusals that have been answered. For Refusal #3, counsel for the Plaintiff may explore any aspect of the side-by-side analysis in an effort to determine the detailed content of that analysis, and to unearth any notes, data examined, communications with human resources or other departments within the Defendant, and any other matter relevant to ascertaining the full detailed scope of the side-by-side analysis that Ms. Hagans has already testified was done.

[16] Despite the fact that I have not addressed the issue of contempt, the Plaintiff deserves his costs of this motion. It is apparent that without it there would be no end to the delay in completing the discoveries and in getting to the point where this action can be set down for trial. Plaintiff’s counsel seeks just over $7,000 on a partial indemnity scale and just over $9,000 on a substantial indemnity scale.

[17] Costs are, of course, discretionary under section 131 of the Courts of Justice Act. I am authorized by Rule 57.01(1)(a) of the Rules of Civil Procedure to award costs with a view to the principle of indemnity for the successful party, and, in general, am required to consider what is “fair and reasonable” in fixing costs, having regard to the reasonable expectations of the parties: Boucher v Public Accountants Council (Ontario), 71 OR (3d) 291, at paras 26, 38.

[18] A party in the Plaintiff’s position ought not have to bring several motions and attend multiple times at examinations for discovery in order to obtain the information that he has a right to obtain. This is the kind of approach to litigation that has made access to justice difficult for many parties, especially plaintiffs who are up against substantial corporate entities. Accordingly, I am inclined to award costs to the Plaintiff on a substantial indemnity basis.

[19] The Defendant shall therefore pay costs in the total amount of $9,000 to the Plaintiff, inclusive of fees, disbursements, and HST.

Morgan J. Date: June 13, 2016