COURT FILE NO.: CV-16-553909
DATE: 20210407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COMMERCIAL SPRING AND TOOL COMPANY LIMITED
Plaintiff
– and –
BARRIE WELDING & MACHINE (1974) INC.
Defendant
Maurice Neirinck, for the Plaintiff
Andrew Wood, for the Defendant
Jessica De Mairins and Mariam Shanouda, for the Intervenor, Ontario Network of Injured Workers’ Groups
HEARD: March 4, 2021
J. Steele j.
[1] This is an appeal by the plaintiff, Commercial Spring and Tool Company Limited (“Commercial Spring”) from an Order of Master Muir, dated March 11, 2020.
[2] At the motion before the Master, the plaintiff sought production of the personnel file for a non-party employee of the defendant, Barrie Welding & Machine (1974) Inc. (“Barrie Welding”). The Master held that the employee’s personnel file need not be produced. The plaintiff now appeals.
[3] Ontario Network of Injured Workers’ Groups (“ONIWG”) was given leave to intervene with respect to the hearing of the appeal. ONIWG brings the perspective and interests of workers with disabilities. ONIWG’s position was that the Master did not err in holding that the employee’s file need not be produced.
Background
[4] Commercial Spring carries on an automotive parts manufacturing business. Barrie Welding is in the business of maintaining and repairing machinery used in the business of manufacturing parts.
[5] Commercial Spring retained Barrie Welding to make material adjustments to two of its presses to make them operate quicker and more efficiently. The presses were not broken. However, Commercial Spring wished to improve the efficiency of the machines
[6] Subsequent to the performance of the work on the presses by Barrie Welding, Commercial Spring alleges that there were press seize-ups, stoppages and breakdowns. Commercial Spring has brought an action against Barrie Welding alleging that their work on the presses was negligent, defective and not properly completed, allegedly resulting in work stoppages, downtime and damages to Commercial Spring.
[7] The plaintiff alleges that one of the employees who worked on the presses was impaired by drugs or alcohol and had a history of alcoholism. The employee in question (the “Employee”) is a senior press technician and has been employed by the defendant for more than thirty years.
[8] In the statement of claim, the plaintiff pleads that “Barrie Welding replaced the worker who had been in charge of the work” and that “Commercial Spring has since learned that the employee had a problem with alcoholism”. Commercial Spring pleads that “Barrie Welding knew or ought to have known that, due to his problem with alcoholism, the employee was not fit to undertake the work” and that “the employee’s ability to perform his tasks was impaired by drugs, alcohol and/or fatigue”.
[9] In the statement of defence and counterclaim, the defendant states that one of its employees “(not a supervisor)” had “an episode (or a personal “breakdown”) at which time Barrie Welding removed him from active duty. The reason for this breakdown was related to personal mental health issues, including alcohol abuse”. Barrie Welding further states that “this employee’s personal issues had never compromised the quality of his work”.
Issue
[10] Did the Master err in ordering that the Employee’s file need not be produced?
Analysis
[11] The Master dismissed the plaintiff’s motion for the following reasons:
“2. The only issue in dispute is whether the defendant should be required to produce certain documents from a non-party employee’s personnel file.
The plaintiff is an auto parts manufacturer. It retained the defendant to make modifications to certain equipment. The main thrust of the plaintiff’s claim is that the modifications were not done properly, and the plaintiff suffered damages as a result.
The plaintiff has alleged that one employee of the defendant who worked on the equipment was impaired by drugs or alcohol and had a history of alcoholism. The plaintiff therefore seeks production of the employee’s personnel file relevant to this allegation.
In my view, this request is not in keeping with the proportionality requirements of the Rules of Civil Procedure, in the circumstances of this action.
First, the main issue in this action is whether the modifications to the equipment were done properly and not why they were not done properly. There is no suggestion by the defendant that it was not responsible for the employee’s actions in connection with the work in question.
Second, the information the plaintiff is seeking is obviously very personal in nature. Privacy is an important interest that needs to be protected by the justice system. This is especially so with privacy in relation to health matters. See Murchison v. Export Development Canada, 2016 ONSC 3084 (Master) at paragraph 22.
The employee in question is not a party to this action. The plaintiff’s broad request is a profound intrusion on the employee’s privacy in respect of a matter that is of marginal relevance at best. In my view, the principal of proportionality takes precedence in the circumstances of this action. The employee’s personnel file need not be produced.
[12] The standard of review on an appeal from a Master’s order is correctness on questions of law. For questions of fact or questions of mixed fact and law, the court should not interfere with the Master’s order unless there is a palpable and overriding error: Wahid v. Malinovski, 2010 ONSC 3249.
[13] The Master determined that the file sought is “of marginal relevance at best”. Accordingly, the Master appears to have assumed or accepted the potential relevance of the employee file. The plaintiff argues that the Employee file sought is relevant and points to the pleadings.
[14] The defendant submits that the health issues of the Employee are not relevant. The Employee, a non-party to this action, suffers from a disability. The defendant argues that the statement of defence was just addressing something head on that they thought was improper, as opposed to agreeing that this was a matter that was in issue.
[15] At this stage in the proceeding, which is a commercial dispute between two parties, it is difficult to know whether the Employee personnel file is relevant. However, given the pleadings, I understand that the file may be relevant. As stated by Master Beaudoin in Hopps-King Estate v. Miller, [1998] O.J. No. 5556 (at para. 8): “It is trite law to say that a party must produce every document that is relevant to the issues as pleaded in a proceeding. It is also trite law to say that relevance at discovery is broader than admissibility at trial. A consideration of relevance always commences with the pleadings.”
[16] However, like Master Muir, I would not order the production of the Employee’s personnel file based on proportionality.
[17] The defendant argues that there are two Rules that are applicable when considering proportionality. First, Rule 1.04(1.1) of the Rules of Civil Procedure, which provides that when applying the Rules, “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”. Second, Rule 29.2.03 of the Rules of Civil Procedure, which provides:
“(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) The time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) The expense associated with answering the question or producing the document would be unjustified;
(c) Requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) Requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) The information or the document is readily available to the party requesting it from another source.
[18] The defendant argues that the Master evaluated proportionality on a holistic basis. The Master weighed the fact that this is a commercial dispute between two parties related to whether Barrie Welding did the work properly or not. It does not concern why it was allegedly done improperly. Further, the Master weighed the fact that the plaintiff seeks highly sensitive and personal information of an employee with a disability.
[19] The defendant argues that the Master considered Rule 29.2.03(c), as requiring the production of the file would be prejudicial to Barrie Welding, which has an obligation to safeguard employee information. The defendant argues that it has an obligation to safeguard the personal information of its employees, especially those with disabilities.
[20] The intervenor, ONIWG, submits that when assessing proportionality, the Court must be informed by human rights protections and Ontario’s human rights regime, in addition to privacy considerations. ONIWG submits that the Master’s approach to the Rule 29.2.03 proportionality considerations “appropriately balances the human rights and privacy interests of workers with disabilities against the circumstances of the proceeding.”
[21] ONIWG submits:
“While the Master did not expressly contemplate the human rights of the worker pursuant to the [Human Rights Code], his approach reflects the public policy considerations set out in the [Human Rights Code], including that workers with disabilities have the right to full participation in the workplace on an equal basis to others and should not be targeted on the basis of their disability. Being identified in litigation and targeted for production of his employee file, on the basis of his disability and without evidence of particular incident, cannot be said to be equal basis”.
[22] The plaintiff points to the factors enumerated in Rule 29.2.03 and argues that proportionality must be considered in relation to these factors. The plaintiff argues that none of these factors are applicable in this case. The plaintiff argues that the Master erred in not assessing or considering these factors. The plaintiff submits that the Master’s exercise of discretion in not ordering the production of the file was an error in principle and a palpable and overriding error. I disagree.
[23] Although the Master did not go through each of the enumerated factors set out Rule 29.2.03, he clearly turned his mind to them. When reaching his conclusion that based on the principle of proportionality the Employee’s file need not be produced, the Master noted the following:
• “[T]he main issue in this action is whether the modifications to the equipment were done properly and not why they were not done properly.”
• The plaintiff is seeking very personal information.
• “Privacy is an important interest that needs to be protected by the justice system.”
• Protection of privacy is especially important in relation to health matters.
• The Employee is not a party to the action.
• The plaintiff’s request is broad and is a “profound intrusion on the employee’s privacy”.
[24] Privacy is a factor that the Court may consider. In Merpaw v. Hyde, 2015 ONSC 1053, the Court stated (at para. 20):
“The Court can refuse disclosure when the information is of little importance to the litigation and disclosure may constitute a serious invasion of privacy. The balancing considerations were effectively articulated by Southin J.A. in M.(A.) v. Ryan, 1994 CanLII 6417; aff’d, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 when he wrote:
“In considering whether to make an order compelling disclosure of private documents, whether in possession of a party or a non-party, the court ought to ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion. There need not be a privilege against testimony in the classic sense for this to be a relevant question. By “private documents” I mean documents which are not public documents. I do not limit this question to what might be thought of as personally embarrassing documents.
On the other hand, a person who has been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure a sort of blackmail by legal process. If such a thing were to happen, the injured person would be twice a victim.
But, on the other hand, a Defendant ought not to be deprived of an assessment of the loss he actually caused, founded on all relevant evidence. It would be as such a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the Court, the award would be for one-tenth that sum, as it would be for the injured person to feel compelled to retire from the field of battle because of a demand for documents containing intensely personal matters of little relevance.””
[25] Further, the sensitivity of the documents requested may be considered. In Murchison v. Export Development Canada, 2016 ONSC 3084 (at para. 22), the Court, in deciding to require the production of certain employment application documents, noted that “the information sought here which would generally be the information contained in the resumes of job applicants is not as sensitive as other information such as health records”. In the instant case, the plaintiff seeks a file that contains highly sensitive information.
[26] In this case it would be the privacy of a non-party employee that would be breached if the defendant is required to produce the personnel file. The Employee’s personnel file contains sensitive information related to the Employee’s health. The issue in the action is whether the modifications were done incorrectly, not why. I agree with the Master that requiring the production of the non-party Employee’s entire employment file with sensitive personal health information is not an invasion of privacy that can be justified in these circumstances.
[27] The Master weighed these factors in considering proportionality and determined that the file need not be produced. I find no error by the Master in so determining.
Disposition and Costs
[28] For the reasons set out above, the appeal is dismissed.
[29] The defendant is entitled to costs. If the parties are unable to agree on costs by April 30, 2021 they may deliver written submissions on costs by delivery to my judicial assistant and by uploading to Caselines, according to the following schedule: (i) the defendant, shall, on or by May 14, 2021, serve and file their Cost Outline, together with any supporting material and their written submissions of no more than 3 pages with authorities hyperlinked; (ii) the plaintiff shall, on or by May 28, 2021, serve and file their responding written submissions of no more than 3 pages with authorities hyperlinked.
J. Steele J.
Released: April 7, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COMMERCIAL SPRING AND TOOL COMPANY LIMITED
Plaintiff
– and –
BARRIE WELDING & MACHINE (1974) INC.
Defendant
REASONS FOR JUDGMENT
J. Steele J.
Released: April 7, 2021