Court File and Parties

Court File No.: CV-16-00561427 Motion Heard: 20180918 Superior Court of Justice - Ontario

Re: Benjamin Hemming, Plaintiff And: Oriole Media Corp., and Juice DMS Advertising Limited, Defendants

Before: Master B. McAfee

Counsel: J. Beeho, Counsel for the Moving Party, the Plaintiff C.J. Cosgriffe, Counsel for the Responding Party, the Defendant Juice DMS Advertising Limited

Heard: September 18, 2018

Reasons for Decision

[1] This is a motion brought by the plaintiff for answers to undertakings and questions refused on the examination for discovery of a representative of the defendant Juice DMS Advertising Inc. (Juice DMS) that took place on January 24, 2018. The plaintiff also seeks an order compelling a representative of Juice DMS to re-attend on examinations for discovery.

[2] Certain relief was agreed to on the morning of the motion. Certain relief remained opposed. No one appeared for the defendant Oriole Media Corp. (Oriole). No facta or case law were filed. No responding chart was delivered. The parties wished to proceed with the motion.

[3] The below references are taken from the plaintiff’s undertakings and refusals chart found at tab K of the plaintiff’s motion record.

Undertakings

[4] On consent, undertaking nos. 2, 4, 14, 33, 34, 38, 45, 46, 47 and 48 shall be answered on or before October 12, 2018.

[5] With respect to undertaking no. 28, Juice DMS wishes to withdraw the undertaking. I was not referred to evidence in support of the reason for the requested withdrawal. I was not referred to any case law in support of the position taken by Juice DMS. Undertaking no. 28 remains outstanding and shall be answered on or before October 12, 2018.

[6] Plaintiff’s counsel confirmed that no rulings were requested with respect to undertaking nos. 11, 17, 19, 24, 35 and 37.

Refusals

[7] On consent, refusal no. 8 shall be answered as part of the response to undertaking no. 34 on or before October 12, 2018.

[8] On consent, with respect to refusal no. 13, Juice DMS shall look for and if found, shall provide the documents. Either the documents or an explanation that the documents cannot be found shall be provided on or before October 12, 2018.

[9] Refusal nos. 4, 5, 7, 10, 11 and 12: Juice DMS concedes the relevance of the questions. The questions require Juice DMS to make enquiries of Mr. Sweeny who is the former President and CEO of Juice DMS. Mr. Sweeny is now a current employee of Oriole. Juice DMS also recently issued a third party action against Mr. Sweeny. It is the position of Juice DMS that they are not required to make enquiries of a former employee who is now adverse in interest. I am satisfied that it is reasonable to require Juice DMS to ask the relevant questions of Mr. Sweeny. To the extent that Mr. Sweeny is a current employee of Oriole, no one appeared on behalf of Oriole to take a position on the motion. This ruling does not compel Mr. Sweeny to answer the questions, it only compels Juice DMS to ask the questions of Mr. Sweeny. Refusal nos. 4, 5, 7, 10, 11 and 12 shall be answered.

[10] Refusal nos. 17, 18, 19, 29 and 30: Mr. Sweeny’s employment at Juice DMS was terminated approximately three months after the termination without cause of the plaintiff’s employment with Juice DMS. I am satisfied that refusal nos. 17, 18, 19 and 29 are relevant based on the pleadings and in particular based on paragraphs 9, 14, 15 and 20-31 of the statement of claim. With respect to refusal no. 30, I am not satisfied of the relevance of the termination letter. Refusal no. 30 need not be answered. Refusal nos. 17, 18, 19 and 29 shall be answered.

[11] Refusal nos. 24, 26, 28 and 31: Ms. Baum was the director of Human Resources at Juice DMS. Ms. Baum’s employment at Juice DMS was also terminated approximately three months after the termination without cause of the plaintiff’s employment with Juice DMS. I am satisfied that refusal nos. 24, 26 and 28 are relevant based on the pleadings and in particular based on paragraphs 9, 14, 15 and 20-31 of the statement of claim. I am not satisfied of the relevance of the termination letter. Refusal no. 31 need not be answered. Refusal nos. 24, 26 and 28 shall be answered.

[12] Plaintiff’s counsel confirmed that no rulings were requested with respect to refusal nos. 16, 14, 15 and 23.

Re-Attendance

[13] On consent, a representative of Juice DMS shall re-attend on an examination for discovery on or before November 30, 2018, to answer questions arising from the responses provided to date, the undertakings now agreed to be answered, and any refusals ordered to be answered.

Costs

[14] The plaintiff was substantially successful on the contested issues argued. Certain undertakings remain outstanding. Part of the relief sought proceeded on consent. No ruling was requested with respect to certain questions. No responding chart was delivered contrary to Rule 37.10(10)(b). In my view the plaintiff is entitled to some costs of the motion but not on the scale or in the amount sought. There is no conduct on the part of the Juice DMS that warrants costs on a substantial indemnity scale. In my view a fair and reasonable amount that Juice DMS could expect to pay for costs is the all-inclusive sum of $2,500.00 payable by Juice DMS to the plaintiff within 30 days.

Master B. McAfee Date: September 19, 2018