Court File and Parties

COURT FILE NO.: 19-CV-618775 MOTION HEARD: 20191127 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Glover, Plaintiff AND: IBM Canada Ltd., Defendant

BEFORE: Master Abrams COUNSEL: S. Wolpert, for the Plaintiff A.E. Reid, for the Defendant

HEARD: November 27, 2019

REASONS FOR DECISION

[1] The issues that I have been asked to decide are whether IBM Canada Ltd. (“IBM”) should be required to serve a further and better affidavit of documents; and, whether a discovery plan should be imposed by the court.

[2] On the issue of the discovery plan, IBM has indicated that it is prepared to agree to a reasonable discovery plan. IBM’s evidence is that its counsel “has twice requested from [plaintiff’s counsel] a draft of the discovery plan the plaintiff is seeking, to enable the parties to agree to a discovery plan without [court intervention]” (November 21/19 affidavit of Lipi Mishra, at para. 14). In the circumstances, the court declines to impose a discovery plan at this time. The parties are to work together to settle the terms of a discovery plan and may return to the court, for assistance, if their efforts do not yield results.

[3] As for the motion for a further and better affidavit of documents, the motion is denied—without prejudice to it being renewed after a discovery plan is in place or after examinations for discovery take place, as may be appropriate.

[4] I am denying the plaintiff’s motion, not because there is no discovery plan in place per se, but because, at this stage and on the evidence before me (with some of the categories that the plaintiff wishes to explore being “information” rather than “document” categories), there is a poorly constructed foundation for the requests now made on this motion.

[5] To succeed on a motion under R. 30.06, the moving party must adduce evidence that documents have been withheld. The law is clear that “speculation, intuition or guesswork” is an insufficient basis for the court to order service of a further and better affidavit of documents (see: Titanium Logistics Inc. v. B.S.D. Linehaul Inc. et al., 2019 ONSC 4955, at para. 10).

[6] The evidence adduced by the plaintiff is the affidavit of a law clerk in the office of plaintiff’s counsel. It is founded on expressions of doubt on the part of plaintiff’s counsel as to the completeness of the defendant’s documentary disclosure, an Order of a United States District Court requiring that further production be made--in a separate/unrelated case--by IBM Corporation (the defendant’s U.S. parent), and an online article commenting on IBM Corporation (and not the defendant).

[7] In response, IBM has proffered evidence as to certain documents sought by the plaintiff already having been provided (for example: “the reasons for the Relocation”: request a., and “communications between the plaintiff and her manager”: request l).; certain documents sought by the plaintiff not existing (for example: “the factors considered in deciding to have the plaintiff participate in the Relocation”: request c.; “anticipated attrition rates”: request e., and IBM’s decision-making process: request f.); certain document requests being far too broad to be accommodated, without clarification/qualification (for example: “the decision-making process”: request b.) and certain requests being information (as opposed to document) requests (for example: “the amount of office space”: request d.; “the number of people who actually relocated”, and “the number of people who resigned”: requests i. and j.).

[8] I share IBM’s stated view that, here, the plaintiff has the information she requires to conduct the discovery of IBM’s representative and can, if she wishes, ask for production of further documents (as may be determined relevant after the discovery plan is settled or in the context of the examinations for discovery). Thereafter, if and as may be appropriate, this motion may be renewed on a fresh evidentiary record. While I accept that the plaintiff ought to be able to obtain evidence that would allow her to prove her claims, as suggested by Ms. Paul in her November 15/19 affidavit, it does not follow that, if the court does not order the documents/information now sought produced/disclosed (before discovery and without an adequate foundation for their production having been laid), the plaintiff will be “jumping through the hoops that [a] plaintiff in [a] Texas case [against the defendant’s U.S. parent] has had to go through”.

[9] Failing agreement as to the costs of the motion or as to the terms of the discovery plan, I may be spoken to. Unless I am asked to rule on costs[^1] or to assist with the creation of the discovery plan, by February 21/20, I will assume that these issues have been settled by the parties.

January 27, 2020 ______________________________

[^1]: Counsel filed costs outlines with me. If the parties wish me to address costs, I am to be notified as to whether they wish to supplement their costs outlines with brief submissions—oral or written.