SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kenneth Gamble v. Black & McDonald Limited

BEFORE: MASTER R. A. MUIR

COUNSEL: Allison Buchanan for the plaintiff Richelle Pollard for the defendant

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 30.06 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the "Rules"). The plaintiff asks for an order requiring the defendant to serve a further and better affidavit of documents. The defendant is opposed.

[2] This is a wrongful dismissal action. The plaintiff was employed by the defendant for approximately 15 years. He is claiming significant damages for wrongful dismissal and also seeks damages related to alleged discrimination on the basis of age.

[3] The parties are in general agreement on the test to be applied on a motion seeking an order for the service of a further and better affidavit of documents. The applicable principles are well summarized in Master Sandler's frequently cited decision in Bow Helicopters v. Textron Canada Ltd., [1981] OJ No. 2265 (SCJ – Master). The important principles that emerge from that decision can be stated as follows:

• Documentary discovery is an important tool in the litigation process;
• The initial decision about what documents to produce is generally left up to the parties;
• A motion seeking a further and better affidavit of documents is proper where there is evidence of missing documents;
• Evidence that simply amounts to intuition, speculation and guesswork, however, is insufficient to justify an order for the service of a further and better affidavit of documents;
• There must be evidence that specific documents exist that have not been produced.[^1]

[4] Of course, simply identifying the existence of documents is not enough. The identified missing documents must then meet the narrower test of relevance now mandated by the Rules, and the requested production must satisfy the proportionality requirements of Rule 29.2.03.

[5] I have considered the issues on this motion with these principles in mind. I am satisfied that the defendant has complied with its production obligations under the Rules. I am not prepared to order the defendant to conduct an additional search or serve a further and better affidavit of documents at this time.

[6] The defendant has served an affidavit of documents and provided copies of its Schedule A productions to the plaintiff. The defendant's affidavit of documents included all documents from the plaintiff's employment file. It also included documents generated by the process leading up to the plaintiff's termination, including relevant email communications. The representative of the defendant who swore the affidavit of documents (Mr. Shannon Kemp) as well as the defendant's representative at discovery (Mr. James McVeety) have given evidence that most of the discussions leading up to the plaintiff's termination were verbal and not reduced to writing. Mr. Kemp's evidence is that he followed up with those persons involved in the events resulting in the plaintiff's termination and requested and produced their relevant documents.

[7] Mr. McVeety did not swear the defendant's affidavit of documents. However, the plaintiff chose to examine him as the defendant's representative at discovery, as is his right. However, it is not surprising that Mr. McVeety was not completely familiar with the process that resulted in the defendant's affidavit of documents. Mr. Kemp was responsible for that part of this litigation.

[8] In my view, Mr. McVeety's evidence at his examination for discovery does not disclose significant gaps in the defendant's production. When asked about production, he identified a few additional documents that may be relevant to the matters in issue in this action. Those additional documents included a so-called HR Toolkit, possibly some additional email and text messages, team meeting minutes and the defendant's retirement policy for 2018. After the examination of Mr. McVeety was adjourned, the defendant conducted further searches of its documents and made some additional production, which included the documents referred to by Mr. McVeety.

[9] In my view, the plaintiff has not met the test set out in Bow Helicopters. There must be evidence that specific documents exist that have not been produced. There is no such evidence on this motion. Mr. Gamble has not provided direct evidence on this motion which would have been expected if he believed documents were missing based on his experience as a long-term employee of the defendant. The plaintiff's evidence does not otherwise identify specific documents that may be missing. The plaintiff has simply suggested alternative search terms and requested an order that the defendant take another look. In my view, that request simply amounts to speculation and guesswork in the circumstances of this motion.

[10] The evidence shows that the defendant made thorough searches for relevant documents before and after Mr. McVeety's examination. Mr. Kemp's evidence on this motion has not been challenged. In my view, the proper course to follow at this stage is to resume Mr. McVeety's examination. The plaintiff will be able to ask questions about the defendant's production that may show the actual existence of additional and specific relevant documents. The plaintiff may also ask questions about the redactions that have been made to protect certain sensitive business information. This is often the best way to promote a just, expeditious and cost-effective discovery process in accordance with Rule 1.04. See Bow Helicopters at paragraph 9 and Mansfield v. Ottawa (City), 2012 ONSC 5208 (Master) at paragraph 2. I am therefore not prepared to order the defendant to conduct more searches or make any additional production at this time.

[11] The parties have agreed that the plaintiff will be permitted a further seven hours to examine Mr. McVeety on a date to be arranged by counsel. Given that the defendant has made some additional production, it is necessary for it to serve a supplementary affidavit of documents listing those documents, if it has not already done so. This supplementary affidavit of documents shall be served within 30 days. The balance of the relief on this motion is dismissed.

[12] If the parties are unable to resolve the issues of the costs of this motion or agree on a timetable for the remaining steps in this action, they shall provide the court with brief written submissions by March 9, 2020. These submissions may be sent directly to me by email.

2020 02 05

Master R. A. Muir

[^1]: See Bow Helicopters at paragraphs 5 to 9.