Court File and Parties

COURT FILE NO.: CV-18-599903 DATE: 2019-12-10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark Krapez AND: Infrastructure Ontario

BEFORE: Koehnen J.

COUNSEL: Khaled Gheddai, for the Plaintiff/Moving party Pamela Chan Ebejer for the defendant responding party

HEARD: November 28, 2019

Endorsement

[1] This is a motion by the plaintiff, Mark Krapez, for directions about the conduct of his examination for discovery.

[2] Mr. Krapez seeks: (i) an order restraining a representative of the defendant from attending his examination for discovery; (ii) an order restraining the defendant from using any information acquired during his discovery to conduct a workplace investigation; and (iii) an order that the transcript of his examination for discovery be kept in a locked compartment that only one representative of the defendant is able to access. Mr. Krapez relies on the deemed undertaking in rule 30.1.01(3) for the latter two orders.

[3] Mr. Krapez alleges that he was wrongfully or constructively dismissed from his employment with the defendant after he was denied long-term disability benefits and after he raised what he says are serious allegations of corruption within the defendant. The particulars of the corruption allegations are not set out in the statement of claim.

[4] Mr. Krapez alleges that after he made allegations of corruption he was “rebuffed, bullied and threatened with harm by one of the perpetrators of the corruption.”

[5] Plaintiff’s counsel submits that Mr. Krapez’s safety is at risk as a result of which his identity and perhaps even his allegations should not be made known to the perpetrators.

[6] At the outset of the motion I suggested that the motion raised more of a practical issue than a legal issue. Given that a defendant is free to use information obtained on examination for discovery to prepare its defence, which would include sharing such information with potential witnesses or the alleged wrongdoers, I invited counsel to have a case conference during which we would discuss what limitations could be put in place to address the plaintiff’s safety concerns but still allow Infrastructure Ontario to defend itself. I indicated that this would probably involve divulging to Infrastructure Ontario the names of the alleged perpetrators so that, at a minimum, the defendant would know who not to speak to within the corporation. Given that the names of the alleged perpetrators would have to be disclosed on discovery in any event, there was in my view, no prejudice to the plaintiff in revealing the names now and discussing terms. After several telephone consultations with Mr. Krapez, plaintiff’s counsel declined a case conference and stated that he wished to proceed by way of motion.

[7] I am unable to grant the relief the plaintiff seeks on the record before me.

Restrictions on Defendant’s Attendance at Discovery

[8] Every party has an inherent right to be present at the examination for discovery of an opposite party: Redekop v. Redekop, 1998 14694 (ON SC), 1998 CarswellOnt 3372 at para. 10.

[9] The plaintiff has articulated no basis on which to exclude the proposed representative of the defendant. The proposed representative is the Human Resources Director of Infrastructure Ontario. There is no suggestion that she is one of the perpetrators of the alleged wrongdoing. Any fear of having her in the room appears to be based more on a fear that she might disclose information to others than is about her attendance.

[10] There is a suggestion that the plaintiff may feel intimidated by having her in the room. In Redekop v. Redekop, 1998 14694 (ON SC), 1998 CarswellOnt 3372 the court pointed out in para. 13 that, in order to exclude an opposing party from attending an examination for discovery:

“It is not enough for the respondent to say that he is, or will be, intimidated if the applicant is present during his discovery; there must be some evidence from which this court can objectively arrive at that conclusion”

[11] The plaintiff has not sworn any affidavit stating that he would be intimidated or uncomfortable with the Human Resources Director being in the room. Given a party’s prima facie right to attend an examination of the opposite party and given the absence of any articulated basis for excluding the Human Resources Director, I cannot grant the relief the plaintiff requests.

Restrictions on Use of Discovery Transcript

[12] Mr. Krapez seeks two restrictions on the defendant’s use of his discovery transcript. First, he asks me to order that the transcript of his examination for discovery be locked in a drawer to which only one person from Infrastructure Ontario would have access. Second, he seeks a direction to the effect that information from his discovery transcript cannot be used by the defendant to conduct a workplace investigation. He bases these requests on the deemed undertaking.

(a) Locking Transcript and Limiting Access to One Person

[13] In oral argument, plaintiff’s counsel submitted that “what goes on in the discovery room stays in the discovery room.” That, however, is not the effect of the deemed undertaking. The deemed undertaking prohibits a party from using information acquired on discovery for purposes other than the litigation. A party is free to use any information it acquires on discovery for the purpose of prosecuting its case or defending itself. That would generally include using information in a discovery transcript to interview witnesses, including alleged wrongdoers within a corporation. The information in the transcript could be used by as many people as the party deemed necessary, provided all persons were using the information for the purposes of the litigation.

[14] While I am sensitive to the plaintiff’s safety concerns, there is no evidence before me on which I can justify the restrictions Mr. Krapez seeks. If as Redekop held, evidence is required to exclude an opposing party from attending a discovery, evidence should also be required if restrictions are to be placed on the use that a party may make of a discovery transcript, such as limiting access to one person.

[15] Mr. Krapez has not filed an affidavit on this motion. Instead, his lawyer has. The safety concern as set out in the lawyer’s affidavit is as follows:

“5. On or about June 18, 2018, the plaintiff issued a Statement of Claim against the defendant alleging serious corruption in the workplace. Attached and marked hereto as Exhibit “A” as my affidavit is a copy [of the] Statement of Claim dated June 18, 2018. In this regard, the plaintiff claims in paragraph 17 of the claim that at all material times the defendant was aware that the plaintiff had reported serious corruption in the workplace to senior management and was rebuffed, bullied and threatened with harm by one of the perpetrators of the corruption.”

6. The plaintiff further pleads in the same paragraph and in paragraph 18 that the defendant corporation knew or ought to have known that he feared for his and his family’s safety, and yet, they did not take any steps to protect him after he reported the corruption.”

[16] There is no explanation for why Mr. Krapez did not file an affidavit himself. There are no particulars of the bullying. There is no explanation for why Mr. Krapez did not report any threats to the police. The lawyer’s affidavit is not even based on information and belief. It merely refers to allegations in the statement of claim.

[17] On the record before me, Mr. Krapez has not put forward any basis on which to restrict the ordinary use to which Infrastructure Ontario ought to be able to use the transcript of Mr. Krapez’s discovery.

(b) Preventing Use of Transcript for Workplace Investigation

[18] At first blush, using the discovery transcript to conduct a workplace investigation would be using it for a purpose other than the litigation and would therefore go beyond the deemed undertaking.

[19] However, in paragraph 18 of his statement of claim, Mr. Krapez complains that the defendant failed to take any steps to protect him after he reported the alleged corruption contrary to its obligations under the Occupational Health and Safety Act. It is not possible though for the defendants to protect the plaintiff without being able to conduct an investigation to determine what happened.

[20] Plaintiff’s counsel agreed that, for all practical purposes, the nature of the inquiry that Infrastructure Ontario would need to conduct to defend itself would be identical to the nature of a workplace investigation.

[21] The defendant submits that it should not be restricted from using the information obtained on discovery to conduct a workplace investigation in part because it is compelled by section 32.0.7 (1) (a) of the Occupational Health and Safety Act to investigate complaints of workplace harassment.

[22] The Ontario Ministry of Labour has approved a Code of Practice that governs workplace investigations. It requires, among other things, that the investigator ensure that the investigation is kept confidential and that identifying information is not disclosed unless necessary to conduct the investigation or as required by law.

[23] Pursuant to rule 30.1.01 (8) the court may order the deemed undertaking does not apply to particular evidence and may impose such terms and give such directions as are just. Courts have allowed information from discoveries to be used in order to comply with statutory obligations: Doucette (Litigation Guardian of) v. We Watch Day Care Systems Inc., 2008 SCC 8 at paras. 34, 39 – 41 and 44; Lithwick (In Trust) v. Hakim Optical Laboratory Ltd., 2007 CarswellOnt 7907 at para. 22 – 23. Given that the plaintiff admits that the investigation necessary for Infrastructure Ontario to defend itself is effectively identical to a workplace investigation, the relief he seeks would either prevent Infrastructure Ontario from defending itself or would be illusory given that Infrastructure Ontario could, in effect, conduct the equivalent of a workplace investigation by using the transcript to defend itself in the litigation.

[24] In these circumstances I authorize Infrastructure Ontario, pursuant to rule 30.0.01(8), to use the discovery transcript of Mr. Krapez to carry out a workplace investigation.

Costs

[25] Infrastructure Ontario seeks costs on a substantial indemnity scale of $20,535.31 or, in the alternative, on a partial indemnity scale in the amount of $13,799.72.

[26] The plaintiff objects to costs being awarded at all and submits they should be in the cause. In addition, he points to his own partial indemnity costs of $4,474.50 as more reflective of a reasonable amount.

[27] I award that cost in the amount of $10,000 including disbursements and HST payable by the plaintiff to the defendant within 30 days.

[28] While comparing the costs of different parties on a motion can be a useful exercise, a cost award is not simply based on the amount of the lowest costs outline. This motion was of greater importance to the defendant than it was to the plaintiff. The motion affected the defendant’s ability to defend itself and to meet its statutory obligations under the Occupational Health and Safety Act. While I acknowledge that the plaintiff’s safety is a significant concern, there was no evidence before me of any danger to his safety, there were merely allegations contained in the statement of claim.

[29] I have reduced the defendant’s time some want to reflect what seemed a slightly larger number of hours for research and preparation for the motion than might have been necessary. I do not mean this in any way critically of counsel. Defence counsel prepared an excellent factum and made helpful, focused submissions which made efficient use of court time. There is, however, often an educational component to research and preparation time for which an opposing party should not necessarily be held responsible.

Koehnen J.

Date: December 10, 2019