Court File and Parties

CITATION: Gu v. Habitat for Humanity Greater Toronto Inc., 2017 ONSC 2793

COURT FILE NO.: CV-15-528995

MOTION HEARD: 20170419

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ying (Sissy) Gu, Plaintiff, Moving Party

AND:

Habitat For Humanity Greater Toronto Inc., Habitat For Humanity Canada Inc. and Grant Thornton LLP, National Toronto, Defendants, Responding Parties

BEFORE: Master Jolley

COUNSEL: Andrew Ostrom, Counsel for the Moving Party Plaintiff Julia LeFebvre, Counsel for the Responding Party Defendants

HEARD: 19 April 2017

REASONS FOR DECISION

Overview

[1] The plaintiff brings this motion for a further and better affidavit of documents from her former employer, the defendant Habitat for Humanity Greater Toronto Area Inc. (“Habitat GTA”), along with Habitat for Humanity Canada Inc. and Grant Thornton LLP, Toronto.

[2] The plaintiff alleges that during the course of her employment and through its termination on 5 June 2014, she was subjected to discriminatory treatment. Habitat GTA takes the position that it terminated the plaintiff’s employment without cause, along with other employees, as a result of an organizational restructuring that occurred due to the amalgamation of several related Habitat chapters (including Habitat Toronto, where the plaintiff worked) into Habitat GTA.

[3] The defendants have served a motion for summary judgment. By order of the court made 21 December 2016, this motion for productions was ordered to be brought in advance of the summary judgment motion. The plaintiff argues that she needs these documents from the defendants to put her best foot forward in response to the pending summary judgment motion.

[4] The defendants take the position that certain categories of documents requested are not relevant, that others are privileged and that any further documents the plaintiff has requested have already been produced.

[5] The plaintiff has requested seven categories of documents, set out below. The plaintiff’s request for documents pertaining to her requests to Habitat GTA made 11 July 2014 and 21 July 2014 that it investigate her allegation that she had been subjected to discrimination was withdrawn.

General

[6] The Rules require a party to disclose every document relevant 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, whether or not privilege is claimed in respect of that document. (Rule 30.02(1)).

[7] If the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from its affidavit of documents, or that a claim for privilege may have been improperly made, it may order service of a further and better affidavit of documents and the disclosure or production for inspection of the document or part of the document, if it is not privileged. (Rule 30.06).

[8] Relevance is established where the evidence tends to prove or disprove a disputed fact. (Denault v. Alplay et al 2016 ONSC 1618 at paragraph 16). In order for a document to be properly related to a matter in issue in the action, it must be one that might reasonably be supposed to contain information which may directly or indirectly enable the party to advance his or her own case or to damage the case of his or her adversary, or which might fairly lead him or her to a train of inquiry that could have either of these consequences. (Apotex v. Richter Gedeon Vegyeszeti Gyar RT 2010 ONSC 4070 at paragraph 77). One fact is not relevant to another if it does not have a real probative value with respect to the latter. (Meuwissen v. Perkin 2012 ONSC 136 at paragraph 27, quoting Sopinka, Lederman & Bryant: The Law of Evidence in Canada 3d ed (Toronto: Lexis Nexis, 2009)).

Analysis of Requested Documents by Category

1. Documents pertaining to the decision-making process of Habitat GTA in respect of the plaintiff’s termination

[9] The plaintiff has deposed that based on her direct involvement in respect of the termination of several management personnel over the years, she finds it inconceivable that her termination and the reasons for it were not discussed and assessed via written communication. In addition to her own experience, the plaintiff relies on Habitat GTA’s Human Resources Program which she says outlines procedures that would have been followed and documents that would have been created in respect of her termination.

[10] Habitat GTA has advised that the discussions concerning the termination of the plaintiff’s employment were between the organization’s CEO and CFO and it has produced all the email exchanges between those two individuals setting out the reasons for the plaintiff’s termination, both pre-dating the termination and post-dating the termination where those emails touched on the rationale for the decision. Habitat GTA notes that it has done a search of its files and located nothing relevant to the allegation of discrimination as the reason for the plaintiff’s termination. Habitat GTA advises that it has produced all of its documentation relevant to its decision to termination the plaintiff, other than documentation relating to legal advice it received in May 2014 concerning this proposed termination over which it claims solicitor-client privilege. While the plaintiff relies on the Human Resources Program for her position that Habitat GTA ought to have further documents, Habitat GTA advised that that Program had yet to be formalized.

[11] Where, as here, the plaintiff contends that the defendant has not met its obligation to produce relevant documents, she must provide some evidence that the defendant has relevant documents in its possession or control that it has not produced. The level of proof required does take into account the fact that one party has access to the documents and the other does not. (Meuwissen v. Perkin 2012 ONSC 136 at paragraph 26). While I recognize that the level of proof required of the party seeking a document to prove on a balance of probabilities that the document does exist is low, I find that the requisite proof is not met here. Habitat GTA has produced a significant number of documents outlining the reasons for the termination of the plaintiff’s employment and there is no hint of any reason for that termination other than as is outlined in her termination letter of 4 June 2014.

[12] As is noted, Habitat GTA relies on solicitor client privilege for the request for productions after its retainer of counsel in May 2014 to provide advice on this termination. However, Habitat GTA has yet to produce a particularized schedule B. It shall provide the plaintiff with a particularized schedule B no later than 20 days from the date of this order if it intends to maintain its claim for privilege.

[13] This portion of the motion is otherwise dismissed.

2. Documents relating to the hiring process of the plaintiff’s replacement

[14] The plaintiff alleges in her statement of claim that the CFO discriminated against her because he wanted to hire a finance director/controller who “had the same race as his”. The plaintiff alleges that the termination of her employment and the hiring of a new Controller was orchestrated, “very well planned hiring and firing”. Habitat GTA pleads that the plaintiff’s position of Director, Finance and Administration was restructured as a result of the amalgamation and a new position of Controller was created. The increased responsibilities of that new position required a professional accounting designation, which the plaintiff did not have. As a result the plaintiff’s employment was terminated without cause.

[15] The plaintiff deposes in her affidavit sworn 17 February 2017 that she is aware of the identity of the individual who was hired for the position of Controller and that the individual is a non-visible minority.

[16] Habitat GTA has already produced the job description for the Controller position, the credentials for the new hire and the correspondence between the CEO and the CFO about the Controller qualifications.

[17] As in category one, above, the Human Resources Program that suggests there may be additional documents when an individual is hired had yet to be finalized at the time of the Controller’s initial hiring by Habitat GTA. In any event, Habitat GTA has affirmed that it has no more documents. The plaintiff may be left with an argument that the Program was not followed if, indeed, it was in force, but that does not assist in asserting that documents exist that the defendant states were never created.

[18] If the plaintiff intends to argue that she was fired to make way for someone of the same race as the CFO, she can argue that on the facts now known. Whether or not Habitat GTA selected this individual “on the basis of discriminatory criteria”, as the plaintiff deposes in her affidavit, will not advance the plaintiff’s main argument that she was terminated because of her race.

[19] This portion of the motion is dismissed.

3. Termination packages and related materials for all management personnel terminated by Habitat GTA in the seven years prior to the plaintiff’s termination

[20] The plaintiff alleges in her statement of claim that she did not receive equal treatment to that received by four other named former Habitat GTA employees who had been terminated between 2007 and 2011. The claim indicates that the individuals were managers and were terminated and given more generous packages than she was offered. The statement of claim does not indicate how the plaintiff’s treatment differed in a discriminatory way from the four named managers, other than the allegation that she was not treated “the same way”.

[21] Habitat GTA deposes by way of responding affidavit that this confidential settlement information is all privileged and was only known to the plaintiff as part of her employment duties as Director, Finance and Administration.

[22] I agree that the packages offered and the settlements reached were and remain privileged and that the privilege has not been waived either by the former employees or by Habitat GTA. (Sable Offshore v. Ameron International Corp. 2013 SCC 37 at paragraphs 17 and 18.) Nor has the plaintiff advanced a sufficient competing public interest such as an allegation of fraud or misrepresentation that might outweigh the public interest in encouraging settlements. (Sable Offshore, above at paragraph 19)

[23] Even if I were wrong and the information was not privileged, as noted by the defendants, there may be many reasons why one employee is provided with a different settlement package than another. The plaintiff provides a list of some such factors that influence a severance package in paragraph 26 of her statement of claim (position, performance, level of responsibility, length of service, age, income, skill level, job market for a specialized position, etc.). As such, even if the plaintiff obtains access to these packages and determines that the offers made to these employees differed from the defendant’s offer to her, it will not, in my view, advance her discrimination claim.

[24] The court addressed the relevance of severance packages provided to other employees of an employer in Brennan v. Labatt Brewing Co. [1994] O.J. No. 2169. Justice Jennings described the facts in a similar employment termination case:

3. Labatt gave the plaintiff a severance package that included salary payable to May 1, 1990, or until the plaintiff found other work, whichever first occurred. In April 1990, not having found work, the plaintiff wrote Labatt asking whether payments could be extended. Dolan replied on behalf of Labatt that in his belief the severance arrangements were fair in view of the plaintiff's circumstances "and in the circumstances of our current and past severance practice."

4. The action was subsequently commenced.

5. The plaintiff argues that the pleading, and the letter from Dolan, make the severance arrangements between Labatt and other terminated executives relevant to the issues in this action.

6. In my opinion, the issue to be determined is whether the salary paid to the plaintiff in lieu of notice was reasonable having regard to the well-known factors set forth in Bardal v. Globe and Mail Ltd., 1960 294 (ON SC), [1960] O.W.N. 253, and numerous cases since. It has been drawn to my attention that in The Law of Dismissal in Canada, 2d ed., Howard Levitt has pointed out that the factors in Bardal are not exhaustive. Indeed, he lists some 105 factors that he has extracted from the case law. None of them, however, appear to me to touch upon the particulars of the negotiated settlements with other employees of the targeted defendant. What seems to me to be the issue is whether the payment was appropriate for this plaintiff in the circumstances of this case. What may have been paid to someone else is not relevant.

7. I have been referred to the unreported decision of the Ontario Court of Appeal in Lawson v. Dominion Securities Corporation, [1977] O.J. No. 1609, (8 July 1977), Martin, Blair and Wilson JJ.A., in which Blair J.A. said at page 7:

The amount paid by the employer in a severance settlement negotiated with another employee is not relevant because the basis upon which the settlement was made is unknown to the Court.

[25] In Manzinani v. Zoran International Inc. 2010 ONSC 4582 at paragraph 33, Master Short held:

33. In wrongful dismissal actions, the Courts have consistently protected from disclosure, and have refused to admit as evidence, written or oral communications detailing severance arrangements that an employer may have made with other employees on the basis that they are irrelevant.

34. The rationale for this approach is that a wrongful dismissal action is founded on the alleged failure of an employer to provide reasonable notice. Damages for reasonable notice are based on the assessment of an individual employee's particular circumstances which include age, length of service, character of employment and the availability of similar employment based on education, training, etc. Thus, reasonable notice is an individual assessment, not a group assessment.

[26] As above, if Habitat GTA relies on privilege as the grounds for not disclosing these materials, it must specifically list the relevant documents (if it takes the position that the documents are relevant) and state the grounds for not producing them.

[27] This portion of the motion is dismissed.

4. All documents related to the decision of Habitat GTA not to award a salary increase to the plaintiff in 2014 and not to award the plaintiff a bonus in 2013 or 2014 or for 15 years of service

(a) Salary increase

[28] The plaintiff alleges in her statement of claim that she was entitled to a pay increase starting 1 January 2014 and did not receive it. After her termination she inquired about that increase. Finally, on 13 August 2014 she was given the retroactive increase. She alleges that this withholding of her salary increase demonstrates that she was differentiated from all other employees who received the annual pay increase.

[29] Habitat GTA denies that there was a generalized pay increase in 2014. It pleads in its defence that in April 2014 most employees were notified of a retroactive pay increase based on “performance and compa-ratio” (statement of defence, paragraph 16). It further admits that the plaintiff did not receive a retroactive increase as part of the April 2014 increases.

[30] Habitat GTA takes the position that the salary increase payment is privileged and was part of settlement negotiations that culminated in the August 2014 payment to the plaintiff. However, this does not address the plaintiff’s concerns. There is an undated letter produced by the plaintiff from Habitat GTA to her which confirms salary increases up to 1.5% for 2014 and also indicates that her salary would “remain” at its then current level. The plaintiff was not given any reason for not receiving the increase in 2014 when she pleads that she always got a pay increase that started from January 1. She wishes to know why she was excluded from the raise recipients for 2014.

[31] While Habitat GTA indicates that it has produced the relevant salary documents, it seems to have focused on the period in June 2014 and later when the retroactive payment was discussed as part of the severance negotiations and not on the March or April 2014 period when a decision presumably was made not to give the plaintiff the 2014 increase.

[32] She is entitled to know the rationale for not awarding her a salary increase in March or April 2014. This does not extend to the reasons for other employees receiving or not receiving increases.

[33] This portion of the motion is granted.

(b) Bonus

[34] The plaintiff pleads that after her termination she asked Habitat GTA about a bonus for 15 years of service and alleged that there was a practice of giving bonuses to employees for 5 and 10 years of service in the past. She alleged that as she was the longest serving employee, ‘she would be the first one who could be awarded the 15-year service bonus of $1,500.’ Habitat GTA denies there is such a thing as a 15 year service bonus and further pleads that the plaintiff did receive commemorative candlesticks to mark the occasion.

[35] Habitat GTA has disclosed what it has relating to the claim for the alleged 15 year service bonus. There is no document that suggests anything further exists.

[36] This portion of the motion is denied.

5. Documents pertaining to the calculation of the plaintiff’s vacation pay

[37] The plaintiff alleges that her vacation pay was intentionally calculated incorrectly. Both parties have produced correspondence addressed to this issue. There is no indication that any further document exists and Habitat GTA has deposed that it has produced what it has on the issue. The more or less contemporary email that Habitat GTA did produce was from August 2014 and provides the plaintiff with a breakdown of her payments along with her ROE and pay stub.

[38] The plaintiff advises that she has produced emails on the issue that Habitat GTA has not produced and that this is illustrative of the fact that the defendant’s productions are deficient. The emails produced by the plaintiff are months after the termination and are, for the most part, between the plaintiff and the lawyer for the defendant. If they are not litigation privileged, they have limited relevance. The email that Habitat GTA has produced advises the plaintiff how the vacation pay was calculated and it is open to her at trial to prove the calculation is wrong, deliberately or otherwise.

[39] This portion of the motion is dismissed.

6. Documents in the possession of both Habitat GTA and Grant Thornton LLP relating to Grant Thornton’s assessment of the plaintiff’s qualifications in respect of the audit it conducted in 2014

[40] It is alleged that in 2014 Grant Thornton, Habitat GTA’s external auditor, undertook an audit of the Habitat GTA financials for the 2013 fiscal year and, in respect of that audit, approached the audit, risk and finance committee of the board of Habitat GTA along with the CEO and CFO to express its concern that the skills and qualifications of the plaintiff fell short of what would be reasonable to expect in an organization of the size and magnitude of Habitat GTA.

[41] The plaintiff alleges these statements were false, misleading, defamatory and discriminatory. She seeks $100,000 in damages from Grant Thornton for intentional infliction of mental suffering, injury to her dignity, feelings and self-respect.

[42] She states that Grant Thornton has not produced any correspondence or communications concerning its assessment of her qualifications. Further she notes that, while the minutes of the meeting of the audit, risk and finance committee have been produced, there was no communication about the reasons for the meeting, the scheduling of the meeting or Habitat GTA’s reaction to the assessment, to list but a few examples of the documents she seeks.

[43] Grant Thornton has filed a responding affidavit stating that it has produced the report of the audit, risk and finance committee dated 8 May 2014 and the post-audit audit committee meeting minutes dated 12 May 2014. The Grant Thornton deponent states that she was present at the meeting and that no documents exist relevant to the issues pleaded other than the two that have been produced. In its affidavit and in its defence, Grant Thornton states that communications concerning the plaintiff’s performance were oral and, to the extent they were recorded, the minutes have been produced. Habitat GTA also confirms that it is not aware of any other relevant documents on this point. I have not been directed to any documents or other evidence that would suggest there are further documents in existence.

[44] This portion of the motion is dismissed.

Costs

[45] The responding parties were largely successful opposing the plaintiff’s motion. Having reviewed the costs outlines provided by both parties, I award costs to the defendants in the cause in the amount of $5,000, inclusive of HST and disbursements.

Cross Motion

[46] The defendants brought a cross motion that the plaintiff deliver a further and better affidavit of documents. The plaintiff consented to the motion. I was advised that she at all times indicated that she would produce the materials but she had not done so. The defendants determined to bring this motion to compel their production to be heard at the same time as the plaintiff’s motion for similar relief. There is no suggestion that the plaintiff would not have complied had the defendants just given the plaintiff a fixed date to provide the further and better affidavit and productions, rather than bringing this cross motion. As soon as the plaintiff received the motion materials, she consented to the order. I make no order as to costs on this cross motion as a result.

Master Jolley

Date: 4 May 2017