Reasons For Endorsement

I. Introduction

[1] The Defendant brought a motion, and the Plaintiff a cross-motion, to compel answers to outstanding undertakings and refusals. The Defendant initially sought answers to 12 undertakings and 18 refusals/under advisements. As set out below, the Defendant’s motion proceeds with respect to 5 refusals and the Plaintiff’s with respect to 9 refusals.

II. The Parties and the Action

[2] This action by the Plaintiff Elliot Dolbel arises from the termination of his employment by the Defendant ADL Process Inc. (“ADL”) which operates an electronics processing and recycling centre. The Plaintiff worked intermittently with ADL from 2003-2006 until he entered into a written employment contract dated May 1, 2010 as a shipper receiver, and later, it appears in 2014, as a Day Shift Supervisor (the “Employment Contract”). ADL terminated his employment without cause on or about July 20, 2017.

[3] In or around early 2017, ADL hired Shari Sacco as its new Human Resources Operations Manager. The Plaintiff alleges that shortly after Ms. Sacco’s hiring, he was placed on probation for 3 months and required to complete a performance improvement plan (the “PIP”). He was terminated after completing the PIP. The 9 refusals which the Plaintiff is moving on arise from Ms. Sacco’s examination for discovery as ADL’s deponent.

[4] The Plaintiff claims damages of $50,122.15 for wrongful dismissal and breach of the Employment Contract representing 12 months’ pay in lieu of notice; employment-related benefits including vacation pay; $37,885.20 for overtime hours owed but not yet paid; and punitive, aggravated, Bhasin and/or moral damages of $25,000 for, among other things, bad faith conduct.

III. The Law and Analysis

Generally

[5] Rule 31.06 states:

(1)A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action….

[6] Rule 29.2.03 sets out the proportionality factors which apply to both oral and documentary discovery:

(1)In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[7] Relevance, the scope of discovery and proportionality were canvassed comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery questions must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and “fishing expeditions” are not permitted.

[8] Another important consideration is Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits together with Rule 1.04(1.1) which requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[9] I have also taken into consideration that the parties have agreed that the deponents will re-attend on examinations for discovery to answer questions arising from undertakings and refusals. The ability to ask further questions on re-attendance or in writing is often of great assistance in resolving disputed undertakings and refusals.

[10] As set out below, some of the disputed questions were resolved by agreement between counsel and/or case management during the motion. The Question numbers below correspond with the charts filed by the parties.

The Defendant’s Motion

[11] The 5 refusals/under advisements which are the subject of the Defendant’s motion were substantially resolved by agreement between the parties, case management and directions. The disposition on each one is summarized below.

[12] Question #12- The Defendant asked why the Plaintiff did not complete the term of an employment contract he signed with RB & W Corporation of Canada (“RB&W”) on March 20, 2018 which was supposed to continue until May 25, 2018. This question is relevant to mitigation of damages. Mr. Dolbel stated during discovery that the employer ended his contract early because he was not a good fit and he has undertaken to produce an email he received from the employment agency. The refusal arises from apparent confusion at discovery over an email which Mr. Dolbel apparently sent to his counsel over which he claims privilege. In any event, the Plaintiff has agreed to confirm if there are any other reasons that he did not complete his contract with RB&W. Together with the answer provided and the undertaking, I am satisfied that this is a complete response to this question.

[13] Questions #279 and #292- These questions relate to where the salary of $40,000 in the Employment Contract “came from” and how it compared to what Mr. Dolbel had already been paid. It is apparent that Mr. Dolbel does not know where the amount “came from” and he answered that “I don’t think I compared the two”. The Plaintiff has agreed to confirm that he does not know the origin of the $40,000 amount and advise how it compares to what he had previously been paid. This is a full response to these questions.

[14] Questions #54 and #55- The Plaintiff refuses the Defendant’s request to provide copies of his income tax return for 2017 and all pay slips for 2017 and 2018. The Defendant has clarified that “pay slips” actually refers to T4 slips, at least for 2017. The Plaintiff has agreed to produce any T4 slips for 2017 and pay slips for 2018. The Plaintiff objects to the production of his complete tax returns largely on the basis of privacy concerns and proportionality such that the entire tax return is unnecessary. Based on discussions in court, the Plaintiff has agreed to produce his T4 slips and the documentation and/or information from his tax returns which demonstrates what his taxable income was for 2017 and his pay slips and any other documentation for 2018. Counsel have agreed to work together to determine the appropriate productions. In my view this is a reasonable and proportionate resolution which is fully responsive to these questions.

The Plaintiff’s Motion

[15] The Plaintiff’s motion proceeds with respect to all but one refusal, which, as noted below, was resolved by the parties.

[16] Question #37 – The Defendant refuses to make best efforts to determine when the Plaintiff started working at ADL if it is different than the date he signed the Employment Contract. The Defendant refuses on the basis that the employment start date being sought is not with respect to the claims at issue in this action and therefore, not relevant. The Plaintiff submits that this date is relevant to notice. The pleadings, including ADL’s Statement of Defence dated February 23, 2018, make reference to all periods when the Plaintiff was employed at ADL.

[17] In my view, given the references to the entirety of the Plaintiff’s employment with ADL, the underlying claim for pay in lieu of notice and the fact that it appears that this information is known to ADL and/or would not be onerous to obtain, I am satisfied that the Defendant should make best efforts to determine and advise of the Plaintiff’s start date.

[18] Question #95 – The Defendant has agreed to answer whether the line weekend overtime work, if required, was added solely for the Plaintiff or for other ADL employees. This question is relevant to the Plaintiff’s claim for overtime. No further steps are required.

[19] Questions #410 and #411- The Defendant refuses to advise whose decision it was to terminate the Plaintiff and if Ms. Sacco had any input into his termination. The Defendant refuses on the basis that since the Plaintiff was terminated without cause, it is irrelevant whose decision it was or how it was made.

[20] I accept the Plaintiff’s submissions that these two questions are relevant to his claim for punitive and aggravated damages on the basis that the Defendant acted in bad faith. In my view, knowing who made the decision to terminate Mr. Dolbel is probative of the Plaintiff’s allegations of bad faith conduct including any involvement or input of Ms. Sacco, given her position as the new Human Resources Operations Manager and the Plaintiff’s allegations that his status changed after her hire. The Defendant shall answer these questions.

[21] Questions #412 - #416 – In these remaining 5 questions, the Plaintiff attempts to delve further into any involvement of Ms. Sacco in his termination, her potential motives for his termination and any impact on her compensation and responsibilities. In my view, all of these questions are irrelevant and/or disproportionate and do not need to be answered.

[22] Question 412 asks whether Ms. Sacco told Mario, ADL’s principal, not to terminate the Plaintiff. This question presumes that Ms. Sacco had input into the decision to terminate Mr. Dolbel and that Mario made the decision. What Ms. Sacco may have told Mario may be relevant as a question arising from her answer to Question 411, but its relevance has not yet been established.

[23] Questions 413-414 request that Ms. Sacco advise if she stood to gain from the Plaintiff’s termination or if she received a pay increase. Questions 415-416 ask Ms. Sacco if she had more or less responsibilities as a result of the Plaintiff’s termination. I am not satisfied that the Plaintiff has established that any personal motives of Ms. Sacco with respect to the Plaintiff’s termination are relevant or probative of any issues in this action. In my view, they are speculative and overbroad. To the extent to which answers to other questions legitimately raise her motivations, they may be asked on her re-attendance on discovery.

III. Order

[24] Order to go as follows:

i.) the Plaintiff shall confirm if there are any other reasons that he did not complete his contract with RB&W within 30 days;

ii.) the Plaintiff shall confirm if he does not know the origin of the $40,000 figure in the Employment Contract and advise how it compares to what he had been paid previously within 30 days;

iii.) the Plaintiff shall produce his T4 slips for 2017 and any information the information from his tax returns or otherwise which demonstrates what his taxable income was for 2017 and his pay slips or other information for 2018 within 30 days;

iv.) the Defendant shall make best efforts to determine when the Plaintiff started working at ADL if it is different than the date he signed the Employment Contract within 30 days;

v.) the Defendant shall advise whether the line weekend overtime work, if required, was added solely for the Plaintiff or for other ADL employees within 30 days;

vi.) the Defendant shall advise whose decision it was to terminate the Plaintiff and if Ms. Sacco had any input into his termination within 30 days;

vii.) the Plaintiff’s motion with respect to Questions 412-416 is dismissed.

[25] The parties have asked me to seize myself of this matter in order to, if necessary, provide assistance, case management and/or hear any additional motions particularly after re-attendance on examinations for discovery. I shall remain seized of this matter and the parties may contact me to schedule a telephone case conference if necessary.

[26] If the parties cannot agree on the costs of these motions, a timetable for written costs submissions can be spoken to on a telephone case conference.

Released: October 2, 2018

Master M.P. McGraw

Dolbel v. ADL Process Inc., 2018 ONSC 5857

Case Summary

Reasons For Endorsement

I. Introduction

II. The Parties and the Action

III. The Law and Analysis

Generally

The Defendant’s Motion

The Plaintiff’s Motion

III. Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 1