John Tuer v. The Bank of Nova Scotia

Court File No.: CV-17-573296 Motion Heard: 2019 01 08 Citation: 2019 ONSC 184

Counsel: Peter L. Roy and Tamara Markovic for the plaintiff Stephen F. Gleave and Will McLennan for the defendant

ENDORSEMENT

Master R. A. Muir –

[1] The plaintiff brings this motion seeking various relief related to the defendant’s production of documents. Most of the issues on this motion were resolved by the parties. Only one issue was the subject of argument.

[2] This is a wrongful dismissal action. The plaintiff was the head of mergers and acquisitions for the defendant. On February 15, 2017, the plaintiff was notified that the defendant had hired Donald Robertson as Co-Head of M & A for BNS. Mr. Robertson was allegedly hired by BNS without consulting the plaintiff. The plaintiff took the position that this hiring amounted to a demotion of the plaintiff and constructive dismissal. He commenced this action on April 12, 2017. The plaintiff seeks damages of more than $10 million.

[3] The defendant denies the plaintiff’s allegations. It takes the position that the plaintiff voluntarily resigned from his position with BNS on February 23, 2017.

[4] In determining the issues on this motion, I have applied the relevance test set out in Rule 30.03. I have also considered the proportionality requirements of Rule 29.2.03.

[5] The plaintiff seeks the production of documents related to the defendant’s recruitment process that ultimately resulted in the hiring of Mr. Robertson. In my view, the plaintiff has established the relevance of a portion of the requested recruitment documents. Relevance is determined by the pleadings. The plaintiff has clearly pleaded in paragraph 18 of the amended statement of claim that the recruitment process was really designed to locate and hire a person to ultimately replace the plaintiff as head of M & A. The defendant has denied this allegation. BNS has pleaded at paragraph 24 of its amended statement of defence that it wanted to keep the plaintiff and did not want to lose the benefit of his expertise. The defendant goes on in succeeding paragraphs to describe the recruitment of Mr. Robertson in some detail.

[6] The recruitment process is also relevant to the plaintiff’s allegation that the defendant failed to act in good faith. The plaintiff has pleaded at paragraph 32 of the statement of claim that it was always the defendant’s intention to terminate the plaintiff as head of M & A.

[7] The intention of the defendant and the process followed in hiring Mr. Robertson are very much matters in issue in this action.

[8] I have therefore concluded that some particulars of the recruitment process that resulted in the hiring of Mr. Robertson are relevant based on the pleadings delivered by both parties, as described above.

[9] However, I agree with the defendant that some consideration must be given to the privacy of the non-parties involved in the recruitment process and to the principle of proportionality. The plaintiff’s production request raises significant privacy concerns. The information requested is private and potentially very sensitive. The individuals who may have been recruited for the position Mr. Robertson was hired for would have had an expectation of confidentiality with respect to their personal employment circumstances and concerns about potential prejudice to their ongoing employment and career opportunities. This is set out in the unchallenged evidence of Ms. Comninos-Buisansky, a senior HR manager of the defendant. It is also reflected in the retainer agreement between the recruiting firm and BNS.

[10] The defendant suggested that if the court determined that the requested recruitment documents were relevant, it would produce those documents insofar as they related to Mr. Robertson and one other person who was seriously considered for the position of Co-Head of M & A, subject to the signing of a confidentiality agreement. In my view, this is a reasonable and proportionate response to the plaintiff’s production request. The recruitment documents related to those two individuals would presumably contain the greatest amount of information concerning the defendant’s intentions when it recruited and hired a Co-Head of M & A and also with respect to the plaintiff’s future with BNS generally. The plaintiff will not be unduly prejudiced by such a limitation as he will have an opportunity to review the defendant’s recruitment process in connection with the two candidates whose consideration advanced the furthest. At the same time, this limited production will protect, to some extent, the legitimate privacy and confidentiality concerns of the defendant and affected non-parties. In my view, such an approach is in keeping with the principle of proportionality, as set out in the Rules.

[11] I am therefore ordering that the defendant produce to the plaintiff the requested recruitment documents in its possession, control or power relating to Mr. Robertson and to the other person put forward as one of the top two candidates for Co-Head of M & A. No other recruitment documents need be produced. This production is conditional on the plaintiff signing the form of confidentiality agreement as agreed to by the parties.

[12] At the conclusion of argument, the parties agreed that the successful party would be entitled to costs of $5,000.00. However, given my ruling, it appears that neither side was completely successful. The plaintiff succeeded in establishing the relevance of the documents but the defendant was able to limit the scope of production. It would therefore appear fair and reasonable that there be no order for costs. However, if either party takes issue with this conclusion, and wishes to make further submissions with respect to costs, they shall provide the court with brief written submissions by February 8, 2019. Any such submissions may be sent directly to me by email along with a draft order from this motion.

2018 01 09

Master R. A. Muir