Court File and Parties
Ontario – Superior Court of Justice
Wildfong v. Dye & Durham Corporation
2019 ONSC 2137
Court File No.: CV-18-602498
Motion Heard: 2019 04 03
Counsel: Daniel Lublin for the plaintiff Andrew Bratt for the defendant
Endorsement
Master R.A. Muir
[1] The plaintiff brings this motion seeking an order that Aziz Pirani attend at an examination for discovery as a representative of the defendant corporation. The plaintiff brought this motion on an urgent basis because it is not clear when Mr. Pirani will be leaving his employment with the defendant corporation and thereby ceasing to be an appropriate prima facie witness under Rule 31.03(2).
[2] The defendant takes the position that this motion is not urgent and should not be heard today. It argues that fairness requires a full opportunity for the defendant to respond to the plaintiff’s motion. Alternatively, the defendant submits that it is inappropriate for a soon to be departing employee to be examined for discovery on behalf of and bind a corporate defendant.
[3] I am satisfied that this matter is urgent and it is appropriate and fair that it be heard today. The evidence and other information from the defendant as to the departure of Mr. Pirani is vague and uncertain. Examinations for discovery were arranged and agreed to by the parties in December 2018. The plaintiff served a notice of examination specifying Mr. Pirani as the plaintiff’s chosen witness on December 12, 2018. It was agreed the examination would take place on March 28, 2019.
[4] At some point after service of the notice of examination, but prior to March 28, 2019, Mr. Pirani apparently approached the management of the defendant and announced that he would be leaving as an employee of the defendant. No date was given at the time. In fact, his departure date is still unclear and he remains an employee of the defendant.
[5] The uncertainty of the departure date has made this motion urgent. The defendant declined to produce Mr. Pirani on March 28, 2019 as previously agreed to by the parties. The stated reason is that he is on his way out the door. However, the court does not know for sure if that will be this month, next month or even next year. At my request, counsel for the defendant called his client this morning. The information provided to the court as a result of that call did not add clarity to the question of Mr. Pirani’s departure date.
[6] In my view, a fairness analysis favours the plaintiff. As matters stand today, the plaintiff has a prima facie right to examine his witness of choice, Mr. Pirani. If this motion is delayed, the plaintiff will lose that right and instead have to argue that a former employee should have to submit to discovery on behalf of the defendant. That would be a very different motion with the onus on the plaintiff. Moreover, the defendant agreed to produce Mr. Pirani and only notified the plaintiff of the change in circumstances a few days before the scheduled examination.
[7] I appreciate that the defendant has had to respond to this motion on short notice but the important evidence in my view is that Mr. Pirani remains an employee of the defendant and his departure date is unknown.
[8] I see no reason why Mr. Pirani should not be required to attend an examination for discovery on behalf of the defendant. He is a current employee. The plaintiff has a prima facie right to select the witness he wants to examine. The defendant previously agreed to have Mr. Pirani attend an examination for discovery on March 28, 2019. There is no suggestion that Mr. Pirani is unfamiliar with the matters in issue in this action. In fact, the contrary appears to be the case. Even if the defendant were given an opportunity to provide evidence that other potential witnesses may be just as appropriate, that would not alter the plaintiff’s prima facie right to have Mr. Pirani as the defendant’s witness at discovery. I note that none of the case law provided to the court dealt with a situation where a party was denied his or her choice of witness because the proposed witness was about to retire or leave the corporate party.
[9] I am therefore ordering that Mr. Pirani be examined for discovery on behalf of the defendant, by June 3, 2019.
[10] The defendant’s affidavit of documents shall be served at least 14 days before the scheduled examination of Mr. Pirani, which examination may take place by video-conference.
[11] The issues of the costs related to the mediation and the costs of this motion are reserved to be heard by me in writing. Any submissions shall be sent to me by email by April 17, 2019, not to exceed five pages in length, not including costs outlines.