COURT FILE NO.: CV-14-10552-CL
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CERIDIAN CANADA LTD. and
Ryan Cookson, for the Plaintiffs
PENDYLUM INC.
Plaintiffs
- and -
JOSS COVENOHO
Joss Covenoho, self-represented
Defendant
DECISION
D.L. Corbett J.:
[1] Ms Covenoho seeks a further and better affidavit of documents from the plaintiffs. The request is predicated on the plaintiffs’ refusal to provide her with a list of all “Implementation Specialists” who were engaged by the plaintiffs to do certain work (“implement the Dayforce HCM application”) from January 2012 to the present.
[2] The plaintiffs resist this request on the basis that:
(a) the requested information is not relevant to an issue in the proceeding;
(b) the request is a “fishing expedition”;
(c) the requested information has no probative value and infringes the privacy of employees and contractors of the plaintiffs;
(d) the time and expense to produce the requested information is not proportional to its relevance or importance to the case.
[3] The third ground is really a restatement of the first two: if the requested information is irrelevant then of course Ms Covenoho should not be given personal contact information of the plaintiffs’ personnel. However, if the plaintiffs’ workers are witnesses with probative evidence for trial, then Ms Covenoho should be given contact information for them so that she may summon obtain their evidence.
[4] I do not accept the fourth ground raised by the plaintiffs. The request is for basic personnel information that should be easy to obtain from the plaintiffs’ records. The evidence does not support a conclusion that culling this information would be disproportionally burdensome. If the requested information is relevant it should not be time-consuming or expensive to collect it.
[5] I conclude that there is a basis for supposing that the requested information may identify persons with evidence relevant to claims in this proceeding. The request is not a fishing expedition to the extent that Ms Covenoho relies on her own personal knowledge as the foundation for supposing that the experience of other workers has been similar to her own. It is a fishing expedition in that Ms Covenoho has framed her request to require personal information and contact with roughly 100 potential witnesses, some of whom continue to work for the plaintiffs. Some balance must be struck, including consideration of potential disruption of the current work environment by a litigant who has shown herself to be ungovernable in the past.
[6] In the result, to strike this balance, for the reasons that follow, I order production of contact information for former workers, but not for current workers.
[7] I note that the request by Ms Covenoho is not framed in a technically correct way. The plaintiffs have not opposed the motion on this basis, and I do not decide it on this basis. What Ms Covenoho seeks is, essentially, a list of potential witnesses and their contact information. This is ordinarily a request to be made on oral examination for discovery rather than by way of a demand for a further and better affidavit of documents. In my view, this argument, though correct technically, is unduly technical. In substance, it does not matter, in this case, if this issue is decided as a matter of refused documentary production or a question refused on discovery.
The Requested Information Appears To Be Relevant to Issues for Trial
[8] A brief overview is necessary to put matters in context.
[9] There have been two lawsuits arising out of the parties’ dealings. In one, Ms Covenoho sued for wrongful dismissal. She lost that case on a motion for summary judgment before Faieta J., but that decision was reversed on appeal to the Ontario Court of Appeal. In the result, Ms Covenoho prevailed in her claim and received judgment for $56,000 for her wrongful dismissal claim. That case is now over.
[10] In this proceeding, the plaintiffs sued Ms Covenoho to prevent her from disclosing confidential information and for an injunction to prevent Ms Covenoho from publishing various defamatory statements regarding the plaintiffs’ business practices.
[11] On May 9, 2014, Belobaba J. granted an interlocutory injunction to restrain Ms Covenoho from publishing or otherwise disclosing statements she threatened to make in a “press release”. On May 13, 2014, Ms Covenoho breached Belobaba J.’s order. By orders dated June 24, 2014 and July 15, 2014, Belobaba J. found Ms Covenoho in contempt of court and sentenced her to 20 days in prison. On September 24, 2014, the Court of Appeal dismissed Ms Covenoho’s appeal of the contempt and sentencing orders of Belobaba J. On October 2, 2014, Doherty J.A. dismissed Ms Covenoho’s motion for a stay pending a proposed application for leave to appeal to the Supreme Court of Canada.
[12] Ms Covenoho served her sentence for contempt of court.
[13] Ms Covenoho has taken steps to try to set aside the injunction order of Belobaba J.:
(a) Motion before Penny J. to set aside the order on July 4, 2014. Penny J. dismissed the motion as, in substance, an appeal from Belobaba J. over which Penny J. did not have jurisdiction;
(b) Motion before this court, sitting as a single judge in the Divisional Court, on December 7, 2015, to extend the time to seek leave to appeal the injunction order of Belobaba J.;
(c) Motion before this court on May 20, 2016, to set aside the injunction order of Belobaba J., which was dismissed.
[14] This brief history does not capture entirely the nature of the underlying problem here. Ms Covenoho has never had her “day in court” on the merits of the injunction claimed by the plaintiffs. She did not participate in the proceedings before Belobaba J., by her own choice at the return of the interlocutory injunction. She then defied the injunction order because she felt that it should not have been made – a fundamental misunderstanding by her of her obligations. She felt that she did not have to follow the order because she sincerely felt that it was wrong. This is no defence for the allegation of contempt of court. However, Ms Covenoho seems to have focused on her perception that the injunction order should not have been granted as her primary defence in the contempt proceedings. It is no defence, and Ms Covenoho’s intransigence on this point led Belobaba J. to characterize her attitude as “defiant”, a finding that was no doubt one of the reasons for the firm sentence following the finding of guilt.
[15] Belobaba J. had recognized in his injunction order that he had not heard Ms Covenoho’s side of the story. Even though Ms Covenoho had apparently chosen not to participate in defiance of the court process, Belobaba J. provided that Ms Covenoho could bring the issue back before him. It seems she sought to do this during the contempt proceedings, which was not the right forum for her to address the merits of the underlying order. And then she tried to address the issue before Penny J., not as contemplated by Belobaba J. (by way of response to the plaintiffs’ evidence), but on the basis that Belobaba J. had erred. By the time Ms Covenoho invoked the correct process to challenge the order of Belobaba J., by way of a motion for leave to appeal to Divisional Court, it was far too late for an appeal (18 months after the order had been granted). In dismissing the motion to extend the time for leave to appeal, I advised Ms Covenoho that she could still move under the authority of Belobaba J.’s order. When she did so, I concluded that the issue was best dealt with at trial rather than on an interlocutory basis.
[16] All of this is to say that a core issue for trial is whether the plaintiffs are entitled to a permanent injunction restraining Ms Covenoho from divulging confidential information or making the impugned statements about the plaintiffs. Those impugned statements include allegations of mistreatment of workers and conduct by the workers that imperils confidential customer information.
[17] This brings me to the pleadings. Ms Covenoho is self-represented and her pleadings do not provide a ready basis for assessing the relevance of the requested information. Some light is cast on the issue in Ms Covenoho’s factum. Much of it relates to arguments about the merits of the claim, rather than the materiality of the requested information to prove Ms Covenoho’s case. However, a few paragraphs do address this question (there are other paragraphs that advert to the basis that Ms Covenoho says that she needs this information, but this passage captures the essence of all the uses for the evidence put forth in the factum):
- I need employee testimony to affirm how they were worked to death under severe pressure over 60 hours for weeks, contractors without pay from Pendylum for months, things which drove Chuang Li to state ‘they deserved it’. I require employee testimony for WHEN they were paid, how long their days and weeks were, the pain they endured, the duress they endured, whether they worked from home, how they downloaded and transferred data, and what their background check experience was [if any] and who else had refused an Amendment to their Agreement before I alone was terminated to intimidate them to sign a 2nd more unconscionable document. I need to know if they were intimidated by this action, what lies they were being told about this action, how it affected them, whether they refrained from acting based on it, and if they did in fact worry about the ‘press release’ disclosing confidential customer data.
[18] I agree with Mr Cookson’s argument that Ms Covenoho seems to be pursuing issues here that have been decided in the wrongful dismissal action. Of course, the issues in that litigation are not a basis for production of information in this litigation. However, the injunction requested by the plaintiffs is very broad, and covers statements respecting working conditions and treatment of workers at the company. It is the plaintiffs who have opened up this area of inquiry by seeking to restrain Ms Covenoho from making statements about it.
Risk of Prejudice to the Plaintiffs
[19] Given the history of the case, I would not be inclined to order production of a list of current workers to Ms Covenoho. Her conduct has been non-compliant and at times very unreasonable. She is immoderate in her characterization of events. It is readily forseeable that she would disrupt the plaintiffs’ business if given contact information for numerous current workers.
[20] Further, it is clear that Ms Covenoho is seeking evidence consistent with her theory of the case – that workers are mistreated and forced by circumstance to act in ways that could compromise customer confidential information. I consider that if Ms Covenoho is provided a list of all former workers in the group she seeks that she should uncover those persons most likely to be able to furnish her with the evidence she seeks. I also consider it less likely that inquiries to these persons would cause material disruption to the businesses of the plaintiffs.
Order
[21] For these reasons, order to go that the plaintiffs provide Ms Covenoho by May 11, 2018, with a list of all Implementation Specialists (legal names, addresses and telephone numbers) who were engaged to implement the Dayforce HCM application from January 2012 to the present, who have ceased to work for the plaintiffs. “Engaged” means, for the purposes of this order, “employed, retained, or employed by a person who is or was retained” by either of the plaintiffs or any of their affiliates.
[22] This order is without prejudice to a further request to identify a broader category of persons if the information provided as a result of this order is insufficient to enable Ms Covenoho a meaningful opportunity to locate the evidence she seeks, and it is without prejudice to the scope of proper oral examinations for discovery. It is also without prejudice to any broader order that the trial judge may make if it appears to the trial judge to be in the interests of justice to so order.
Costs
[23] Unless there is an offer to settle that bears on the issue of costs, success has been divided and there shall be no order as to costs. The parties shall advise my office, in writing, by April 20, 2018, if they take the position that there is a relevant offer to settle bearing on costs, in which event I shall give further directions for costs submissions.
Next Steps
[24] This court remains seized of case management of this case. Either party may arrange a case conference to schedule any remaining steps required to ready this matter for trial.
[25] This court received a communication from Ms Covenoho inquiring about the status of this decision. That inquiry, itself, was appropriate. The communication also contained information about Ms Covenoho’s future litigation plans and her views of various matters that have been decided already. That portion of the communication was not appropriate. Parties to litigation are not to communicate with the case management judge except:
(a) on consent of the parties;
(b) with the express consent of the case management judge;
(c) to inquire about the anticipated release date of a reserved decision; or
(d) to schedule a case management conference.
In all cases, any communication by a party with the court must be copied to counsel for all other parties.
D.L. Corbett J.
Released: April 6, 2018
COURT FILE NO.: CV-14-10552-CL
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CERIDIAN CANADA LTD. and PENDYLUM INC.
Plaintiffs
- and -
JOSS COVENOHO
Defendant
DECISION
D.L. Corbett J.
Released: April 6, 2018