Court File and Parties

Court File No.: CV-18-00595744 Motion Heard: 20190312 Superior Court of Justice - Ontario

Re: Daniel Avon, Plaintiff, Defendant to the Counterclaim And: NFP Canada Corp., Defendant, Plaintiff by Counterclaim

Before: Master B. McAfee

Counsel: G. McGuire, Counsel for the Moving Party, the Plaintiff, Defendant to the Counterclaim S. Di Francesco, Counsel for the Responding Party, the Defendant, Plaintiff by Counterclaim

Heard: March 12, 2019

Reasons for Decision

[1] This is a motion brought by the plaintiff, defendant to the counterclaim Daniel Avon (the plaintiff) for answers to questions taken under advisement and refused on the examination for discovery of the representative of the defendant, plaintiff by counterclaim NFP Canada Corp. (the defendant) held on November 6, 2018. At the time of the hearing of the motion, six questions taken under advisement and refused remained at issue.

[2] This action arises as a result of an alleged constructive dismissal. The plaintiff claims damages in the amount of $1,400,000. The defendant denies that the plaintiff was constructively dismissed and alleges that the plaintiff voluntarily resigned prior to the expiry of a fixed term contract of employment. The defendant counterclaims for the amount of $950,000 for breach of contract.

[3] In determining the propriety of the questions at issue on this motion, I have applied the relevance test stated at Rule 31.06 of the Rules of Civil Procedure, the principles of proportionality set out at Rule 29.2.03 and considered the scope of discovery as summarized by Justice Perell in Ontario v. Rothmans Inc., 2011 ONSC 2504, [2011] O.J. No. 1896 (Ont. S.C.J.) at para. 129 as cited in D. Crupi & Sons Limited v. Travelers Guarantee Company of Canada, 2011 ONSC 5874 (Ont. S.C.J. – Master) at para. 7.

[4] The below references are taken from the Form 37C chart found at tab 3 of the amended responding motion record. What follows are my rulings.

[5] Refusal No. 1, Q. 101-104, P. 20-21, Under Advisement No. 3, Q. 98-100, P. 20 and Under Advisement No. 4, Q. 128-132, P. 26-27: I am satisfied that the questions are relevant based on the pleadings and in particular are relevant to the nature of the new position offered to the plaintiff as pleaded at paragraph 18 of the statement of claim. The questions shall be answered.

[6] Refusal No. 2, Q. 996-997, P. 202: I am satisfied that this question is relevant based on the pleadings and in particular based on paragraph 26 of the statement of claim. The alleged pattern of behavior pleaded at paragraph 26 of the statement of claim is alleged to have occurred in the past and is not limited to a particular time frame. In my view the three years requested is reasonable and proportionate. See also Rule 31.06(2). The question shall be answered.

[7] Under Advisement No. 5, Q. 1151, P. 237: This question is overly broad. The question is not limited to texts and emails referring to the plaintiff that are relevant to the matters at issue in the action. The question need not be answered.

[8] Under Advisement No. 6, Q. 1152, P. 238-239: This question is overly broad. The question is not limited to specific individuals nor is it limited to emails referring to the plaintiff that are relevant to the matters at issue in the action. The question need not be answered.

[9] With respect to the issue of costs of the motion, I award no costs of the motion to any party. Each party achieved some success on the contested issues argued. Although the plaintiff answered undertakings and reconsidered questions taken under advisement and one refusal after the motion was served, defendant’s counsel obtained instructions to bring this motion and requested the availability of plaintiff’s counsel for this motion only eight days following the discovery. Although the plaintiff answered nineteen of twenty undertakings slightly beyond the sixty day time period set forth in the Rules, the undertakings were answered in a reasonable period of time having regard to the intervening December holidays. There shall be no costs of the motion payable to any party.

Master B. McAfee Date: March 19, 2019