Court File and Parties
COURT FILE NO.: CV-18-589471
DATE: May 10, 2019
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mary-Anne Willsey, Plaintiff
AND:
Casino Rama Services Inc., CHC Casinos Canada Limited and Penn National Gaming Inc., Defendants
BEFORE: Master P.T. Sugunasiri
COUNSEL: Bramhill, M., Buckerfield, J., Counsel for the Plaintiff/Moving Party
Pepper, K., Counsel for the Defendants/Responding Parties
HEARD: May 10, 2019
Reasons for Decision
[1] Discovery planning can be a useful tool that forces the parties to focus the claim at an early stage of the litigation. The present case exemplifies its meaningful use. Ms. Willlsey was a long-time senior level employee at Casino Rama located in Ramara, a township located on the reserve land of the Chippewas of Rama First Nation. She sues the Defendants for her wrongful dismissal in January of 2017 and damages for systemic and personal discrimination against her as an Indigenous employee.
[2] Casino Rama was operated pursuant to an Operating Agreement between some or all of the Defendants and the Ontario Lottery and Gaming Corporation (“OLG”). Willsey alleges that the agreement required the casino operators to maximize the training and employment of First Nations peoples at all levels of operation. Willsey alleges in her claim that those provisions were implied terms in her employment contract with Casino Rama Services Inc.
[3] According to Willsey’s claim, Casino Rama convened a strategic advisory committee who would meet to discuss Indigenous human resources and development issues. Willsey alleges that she regularly provided training and guidance to the committee on these issues and that the role of the committee, among other things, was to fulfill the mandate of the Operating Agreement to maximize Indigenous training and employment at all levels.
[4] As required by the Rules of Civil Procedure, the parties have been discussing their discovery plan. They require the court’s assistance in determining three issues:
a. Should the Defendants disclose the entire Operating Agreement?
b. Should the Defendants disclose the minutes and notes of meetings of the Strategic Advisory Committee recorded from 2007 to 2017; and
c. Should the court order that mediation occur after productions but before discoveries?
Issue #1: Should the Defendants disclose the entire Operating Agreement?
[5] The Defendants should disclose the entire Operating Agreement because it is relevant and proportional to do so.
[6] The parties agree that documents that are relevant to the issues in the action should be disclosed. I further accept the Defendants’ submission that disclosure orders must consider how useful the requested document is and how onerous it may to produce it. There is no doubt that at least portions of the Operating Agreement are useful and easy to produce. The Defendants have already agreed to produce some of it. The question is whether or not the Defendants can refuse to produce parts of it because they deem those parts to be irrelevant to the issues in the action.
[7] According to Chief Justice Strathy, relevant documents should not be redacted solely because a party deems those portions to be irrelevant McGee v London Life Insurance Co., [2010 ONSC 1408](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc1408/2010onsc1408.html), [2010] OJ No 898 at para [13]. Rather, the party seeking to redact or provide only excerpts bears the onus of establishing that redaction is necessary to protect an important interest. In my view, the Defendants have not met this burden.
[8] The Defendants argue that the Plaintiff is not a party to the Operating Agreement and that there are signatories to the agreement that are non-parties to the action. First, I have no evidence about the signatories to the Operating Agreement. I only have what is alleged in the pleadings. Second, the mere fact that the non-parties may be affected does not in and of itself permit the redactions. At best it might have warranted adjourning the motion to have those parties served. Neither party made such a request. Third, the Defendants did not direct me to an important interest that I need to protect. For example, they did not direct me to a confidentiality clause within the agreement that might protect it and demonstrate that they and the non-parties intended to keep the agreement confidential.
[9] The Defendants also argue that paragraph 60 of the Operating Agreement (“OA”) is a full answer to Willsey’s claim. Apparently this paragraph addresses claims made by third parties. This speaks to the merits of action and not the relevance of the OA. If anything, this supports Willsey’s argument that the entire OA, not just the portions addressing Indigenous employment, is relevant.
[10] The Operating Agreement shall be included in the Discovery Plan as one of the documents that the Defendants must disclose.
Issue #2 – Should the Defendants disclose the minutes and notes of meetings of the Strategic Advisory Committee recorded from 2007 to 2017?
[11] There is a discrepancy in the pleadings as to the name of the committee whose notes Willsey seeks. The Amended Statement of Claim refers to it as the “First Nations Strategic Advisory Committee”. The Defence states that they have no knowledge of such a committee but that there was a strategic advisory committee that met about First Nations employment and Casino Rama’s engagement with the community at large. The name of the committee is irrelevant. Clearly both parties are talking about a strategic committee who addressed Indigenous hiring and other issues.
[12] According to Willsey’s proposed discovery plan, she seeks “Any and all Minutes of meetings, or other notes of meetings of the Strategic Advisory Committee relating to First Nations employment matters at the casino (i.e. hiring, recruitment, promotion etc.) during the relevant period. The “relevant period” is from January 2007, when Willsey alleges that there was change in Casino Rama’s approach to the Indigenous workforce, to January 2017, when Casino Rama terminated her.
[13] The Defendants shall provide the documents as described. They are plainly relevant to Willsey’s claim of systemic and personal discrimination as an Indigenous employee. I have no evidence that they are unavailable or difficult to obtain. I am also not persuaded that because Willsey was not a member of the committee, she is disqualified from obtaining its minutes and notes of meetings. Being a member or not a member has nothing to do with whether or not the minutes are relevant to the issues in the action. I conclude that in the face of the Defendants admitting in their defence that the committee discussed Indigenous employment, the minutes and notes are relevant to the claim of systemic and personal discrimination.
Issue #3 – Should the court order that mediation occur after productions but before discoveries?
[14] At this juncture, I am not inclined to set a timeline for mediation. Although the court can intervene from time to time to assist in the timely prosecution of an action, it is ultimately the Plaintiff’s decision as to how she wishes to proceed. This action is not case managed and I am not willing to interfere with Willsey’s preferred process. At best I can encourage the parties to continue with their settlement negotiations and to work together, as they have, to bring this action to an expeditious and cost-effective resolution.
Disposition:
[15] For the foregoing reasons, I order as follows:
a. The Defendants shall disclose the entire Operating Agreement;
b. The Defendants shall disclose all Minutes of meetings, or other notes of meetings of the Strategic Advisory Committee (as contemplated at paragraphs 25-27 of the Statement of Defence) relating to First Nations employment matters at the casino between January 2007 and January 2017; and
c. I make no order with respect to the timing of the mediation.
Costs:
[16] I strongly urge the parties to continue with their collaborative process to agree on costs. Willsey is presumptively entitled to her partial indemnity costs subject to any factors that suggest otherwise. If the parties cannot agree on costs, Willsey may submit brief submissions of no more than three pages double-spaced plus her costs outline by September 3, 2019. The Defendants may respond by October 1, 2019 with the same parameters. All materials shall be filed with the Masters’ Administration on the 6th floor of 393 University Avenue.
Original signed
Master P. Tamara Sugunasiri
Date: August 6, 2019