CITATION: Fortier v Oxford University Press, 2016 ONSC 6782

COURT FILE NO.: CV-15-528509

MOTION HEARD: 20160608

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SOPHIA FORTIER, Plaintiff

AND

OXFORD UNIVERSITY PRESS, Defendant

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel for plaintiff: David Hager Fax: 416-915-4127

Counsel for defendant: Daniel J. Michaluk, Hicks Morley Hamilton Stewart Storie LLP Fax: 416-362-9680

Counsel for third party: A. Zoe Paliare Fax: 416-646-4301

REASONS FOR ENDORSEMENT

[1] The plaintiff brought this motion for numerous relief that relate to discovery issues; however, the majority of the issues were resolved prior to the hearing of this motion. The remaining issues relate to the rights of the plaintiff and third party to have copies of the transcripts of the examinations for discovery of each other prior to each party’s examination for discovery given that the third party did not defend the main action. Essentially, the issue relates to the possibility of tailoring of evidence.

[2] This motion was brought in the main action only; however, as the issues involve rights of the third party, counsel for the third party appeared at the hearing of this motion and advised the court that the third party was in agreement with the plaintiff’s position and the terms of the plaintiff’s draft order. The third party filed no material on this motion and made no submissions on the issues.

Background

[3] Sophia Fortier (“Fortier”) is suing Oxford University Press (“OUP”) for damages for constructive dismissal. Fortier claims that she was recruited by the third party, David Stover (“Stover”), who was president of OUP’s Canadian operation and who promised her that if she joined OUP, her seven years of service with Pearson Education Canada (“Pearson”) would be recognized if her employment was later terminated. Fortier states that in relying on that promise, she commenced employment with OUP. Years later while still employed by OUP, OUP advised her that she would have to assume a new and narrower role than she previously held. Fortier considered the new role as a demotion and advised OUP in September 2014 that she considered her employment constructively terminated and that she expected OUP to honour the commitment made to her that she would be given a choice of remaining in a downsized position or receiving a severance package.

[4] OUP defended the action. OUP denied that it constructively dismissed Fortier and pled that she resigned. OUP further pled that it terminated Stover’s employment in March 2014, prior to Fortier’s resignation or termination. It alleges that Fortier and Stover had and continue to have a personal relationship as friends and Stover was Fortier’s career long manager and supporter. OUP pled that Stover had no authority to make representations to Fortier about the handling of her termination or the provision of a severance package and any statements that Stover made about OUP’s confidential deliberations or its solicitor-client communications were made in breach of his duties to OUP. As such, OUP says it is not bound by any such representations because Fortier knew that Stover had no authority to make such representations.

[5] In her reply, Fortier pled that Stover had both actual and ostensible authority on behalf of OUP to make the promise to recognize her prior years of service when recruiting her and that OUP management was fully aware that Stover had made similar promises on behalf of OUP to successfully recruit other executives to join OUP.

[6] OUP issued a third party claim against Stover in which it alleged that Stover did not make any promise to recognize Fortier’s prior service but if he did, he breached a duty of loyalty and good faith owned to OUP. OUP pled further that immediately after Stover executed a severance agreement with OUP, he met with Fortier and counselled her in such a way to put her interests before the interests of OUP.

[7] Stover defended the third party action. He did not defend the main action. Stover pled that he was told by OUP management that Fortier’s new role would be narrower than her general manager position and that she would be given a choice as to whether or not to take the new position. He denies counselling Fortier to prefer her interests over OUP’s interests as alleged by OUP. He plead that OUP was fully aware and acknowledged the commitment made to Fortier to recognize her past service with Pearson.

[8] Fortier delivered her affidavit of documents and a notice of examination of an OUP representative pursuant to rule 34.04. However, it is noted that OUP had not delivered its affidavit of documents when served with Fortier’s notice of examination in non-compliance with that rule. In any event, this is not in issue on this motion.

Plaintiff’s Motion

[9] The parties have had great difficulty reaching an agreement with respect to the terms of oral discovery and the ancillary steps. The tension between the parties relate primarily to the similar positions taken by Fortier and Stover in their pleadings and preventing them from tailoring his or her discovery evidence if they know the other’s testimony in advance of his or her oral discovery.

[10] Stover did not defend the main action and essentially, Fortier and Stover’s positions are aligned. Therefore, the defendant has concerns regarding tailoring of evidence by Fortier and Stover. On the other hand, Fortier has concerns that OUP may ambush her at her oral discovery as OUP is party to both actions and it will have documentary production from both Fortier and Stover’s prior to their oral discoveries. Fortier’s further concern is that if OUP examines Stover before Fortier is examined, OUP may ambush Fortier at her oral examination.

[11] As Stover did not defend the main action, he and Fortier are not parties to the same action. Therefore, by operation of rule 29.05, Stover does not have the same rights with respect to discovery as in the main action. By analogy, Fortier does not have the same rights with respect to discovery in the third party action.

[12] Our courts have addressed the concept of adverse parties and tailoring of evidence in the past.

[13] The concept of adverse parties emanates from rule 31.03(1) which permits a party to an action to examine for discovery any other party “adverse in interest.”

[14] The court in Lederer v. Fenwich, [2002] O.J. 2021 (Ont. S.C.J.) dealt with the adversity principle where, in that action, the plaintiff and third party were adverse in interest as the third party had defended the main action. In deciding that the plaintiff was entitled to be present at the oral discoveries between the defendant and third party under rule 31.03(1), the court held that adversity is determined by the pleadings, not simply by the title of a party in the proceedings. It went on to state that the adversity principle had been extended so as to permit examination for discovery even if a third party does not deliver a defence to the main action as in Air Canada v. Meridien Credit Corp. Canada (1985), 6 C.P.C. (2d) 195 (Dist. Ct.).

[15] It is a general principle that it is desirable in the interest of justice to have full disclosure of all facts prior to trial. This principle was applied in the Air Canada decision where the third party had not defended the main action. That court found that the plaintiff and the third party were in fact adverse in interest for the purpose of rule 31.03(1) based on the respective pleadings.

[16] Our courts have also dealt with a line of cases which I will refer to as “exclusion cases.” In those cases the parties are clearly adverse in interest and the courts were required to determine when an adverse party may be excluded from a co-party’s oral discovery. The decisions start with the general principle that every person has a right to be present at trial or any proceeding which form parts of the trial process including examinations for discovery of the opposite party.

[17] Some of the principles applied by the courts in those exclusion cases can be applied to the issues in the within motion where Fortier and Stover are not parties to the same action but their positions are aligned and opposite OUP’s position.

[18] In Parro v. Mullock, 1982 CarswellOnt 380 (H.C.J.), the issue involved whether it was proper for the plaintiff to know the defendant’s evidence prior to the plaintiff’s examination for discovery. The court held that before it would interfere with the general principle of informed discovery, it must be satisfied that there is a real likelihood that a party will tailor his own evidence to suit another party’s evidence.

[19] In a later decision in Lesniowski v. H.B. Group Insurance Management Ltd., [2003] O.J. No. 6263, the motion involved the rights of co-defendants to be present at each other’s oral discovery and whether to prohibit each co-defendant from knowing the other’s evidence before their examination for discovery. In referring to the Parro decision, Echlin J. reiterated that as a matter of law, the exclusion of a party from an examination for discovery should be ordered rarely, sparingly, and only in exceptional cases. His Honour provided a list of circumstances which could lead to an exclusion order, the first being where evidence is likely to be tailored as was found in Parro.

[20] More recently in the decision of Visram v. Chandarana, 2010 ONSC 4080, 2010 CarswellOnt 5352, the issue before the court was whether co-defendants who were father and son should be excluded from attending each other’s examination for discovery. In deciding what test applied, Master Graham canvassed two lines of cases and concluded that the less stringent test was applicable. The onus on the applicant seeking exclusion is not a heavy one and he must satisfy the court that the chance of injustice resulting from exclusion is remote. Master Graham concluded that the court, in deciding whether or not to exclude the defendant/father from the defendant/son’s examination, must balance the defendant’s prima facie right to be present at all stages of the action against the plaintiff’s right to examinations for discovery that are uncompromised by possible collusion between parties similar or identical in interest that may lead to “tailoring” or “parroting” of evidence. (para. 10) Master Graham granted the exclusion order and found that the balancing of the parties’ interests favoured an exclusion order.

[21] In this case the issue is not with respect to eliminating a party’s rights under the rules. It is apparent that Fortier and Stover are not adverse in interest. This is so because Stover did not defend the main action and upon a review of the pleadings. Therefore, under the rules and the principle of openness, each of them is entitled to know the other’s evidence prior to his or her oral discovery. However, given Fortier and Stover’s alignment of interests, the moving party, Fortier, must satisfy the court that there is a chance of injustice if the exclusion order sought is not granted.

[22] Here, the pleadings disclose that Fortier and Stover are not adverse in their positions. They both pled that Stover recruited Fortier and in so doing Stover represented to Fortier that if she joined OUP her prior years of service with Pearson would be recognized if her employment with OUP was later terminated. Further, they both pled that Stover had authority to make the representation, which is denied by OUP. OUP pled that Fortier and Stover were friends and had a close relationship outside of their business relationship. OUP produced emails to substantiate that allegation. The emails strongly suggest a close personal relationship. Further, there is no evidence on this motion that there is no such friendship or that the friendship does not continue. Additionally, the fact that both Fortier and Stover were terminated from OUP is further evidence that supports the possibility of tailoring evidence against OUP. Lastly, given that both Fortier and Stover pled that the impugned representation was oral, there will be an issue of credibility at trial regarding their evidence.

[23] For the above reasons, in balancing the interests of Fortier and Stover to know the other party’s evidence prior to his or her oral examination against OUP’s interests in avoiding collusion or tailoring of evidence, I am satisfied that there is a possibility of collusion of evidence between Fortier and Stover. Therefore, Fortier and Stover shall be precluded from knowing the evidence of each other given at his or her examination for discovery until completion of their examinations for discovery. In order to balance any injustice to Fortier and Stover in not knowing the other party’s evidence before trial, each of them shall provide to the other a copy of the transcript of his or her examination for discovery within 30 days of completion of his or her examination.

[24] Therefore, the following orders shall issue:

(a) Fortier and her counsel, and any other person having knowledge of what transpires at the examination for discovery of Fortier, are hereby prohibited from communicating with Stover with respect to any aspect of the content of the examination for discovery of Fortier, including the questions asked and the evidence given, until the examination for discovery of Stover has concluded;

(b) Stover and his counsel, and any other person having knowledge of what transpires at the examination for discovery of Stover, are hereby prohibited from communicating with Fortier with respect to any aspect of the content of the examination for discovery of Stover, including the questions asked and the evidence given, until the examination for discovery of Fortier has concluded;

(c) No transcript of the examinations for discovery of Fortier and Stover shall be ordered until the examinations for discovery of both Fortier and Stover are concluded.

[25] It appears in comparing the respective proposals of the parties that OUP has been successful on the one remaining issue on this motion and should be awarded costs. Fortier submits that she was successful on seven of the ten issues raised on the motion. This motion was essentially regarding a discovery plan where the parties could not reach an agreement which necessitated this motion. Although Fortier may have been successful on more issues than OUP, I am not prepared to go through the onerous exercise of comparing who succeeded on each issue. In fixing costs, I will consider that Fortier’s costs of the motion are slightly higher than OUP’s costs given that Fortier was the moving party.

[26] OUP seeks partial indemnity costs of $3,955.87 plus attendance on June 1, 2016 when the motion was scheduled before Master Hawkins but not reached. Fortier seeks legal fees of $2,848 plus HST and fees for appearance on the motion of $1,000, for an approximate total of $4,218. Therefore, the amount sought by OUP is slightly higher than those sought by Fortier. Given that the costs sought by each party are similar, it is my view that a reasonable amount for Fortier to pay is $ 4,000, which I so order, payable within 30 days.

(original signed)

Master Lou Ann M. Pope

Released: October 31, 2016