Mohotoo v Humber River Hospital, 2021 ONSC 4894
COURT FILE NO.: CV-20-00637685 MOTION HEARD: 2021-07-02 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jairam Mohotoo, Plaintiff AND: Humber River Hospital, Defendant
BEFORE: Master La Horey
COUNSEL: Erin Porter, Counsel for the Moving Party Defendant David Vaughan, Counsel for the Responding Party Plaintiff
HEARD: July 2, 2021
REASONS FOR DECISION
MASTER LA HOREY:
Introduction
[1] This is a motion in writing brought by the defendant Humber River Hospital (the “Hospital” or the “defendant”) under Rule 31.03(2) of the Rules of Civil Procedure[^1] for an order that the plaintiff examine for discovery Grace Regala in place of the representative selected by the plaintiff. In the alternative, the defendant seeks an order that the examination for discovery of the representative selected by the plaintiff proceed solely by way of written questions and answers.
[2] The plaintiff in this wrongful dismissal action seeks to examine for discovery A.B.,[^2] a Hospital employee who made a complaint of sexual harassment against him to the defendant. The defendant investigated the complaint and terminated the plaintiff’s employment with cause. The defendant moves to substitute the plaintiff’s selection with Ms. Regala, Senior Human Resources Business Partner. For the reasons that follow, the motion is dismissed.
Facts
[3] The plaintiff was employed by the defendant from 1989 until his employment was terminated on a with cause basis on February 14, 2020. The plaintiff commenced this action on March 9, 2020 seeking wrongful dismissal damages as well as punitive and aggravated damages.
[4] The statement of defence dated May 26, 2020 contains the following allegations:
Paragraph 16 – Under a heading entitled “Events Leading to the Plaintiff’s Termination” the Hospital pleads that or around January 29, 2020, A.B. made a verbal complaint of sexual harassment against the plaintiff.
Paragraph 20 – Under a heading entitled “The Hospital’s Investigation into [A.B.]’s Allegations Against the Plaintiff”, the Hospital states that A.B.’s verbal complaint of January 29, 2020 was made to Ms. Thomas, a program director as the Hospital.
Paragraph 21 - A.B. was interviewed by Ms. Thomas, and two other hospital employees concerning his allegations on or about January 30, 2020. Ms. Regala was not one of the three employees.
Paragraph 26 - The plaintiff was interviewed was interviewed by Ms. Regala and two other Hospital employees on or around February 4, 2020 regarding the allegations made against him by A.B. (the “First Interview”).
Paragraph 24 - A.B. submitted a written complaint to the Hospital on or around February 10, 2020.
Paragraph 27 - The plaintiff was interviewed again on February 12, 2020 to discuss further the allegations made against him by A.B. (the “Second Interview”).
Paragraph 28 – “Based on the Plaintiff’s conduct and answers to questions asked in both the First and Second Interviews, the Hospital determined that the Plaintiff lacked credibility and was not being honest or forthright in responding to the allegations made by [A.B.] against him.”
Paragraph 29 – “At the conclusion of the investigation, the Hospital concluded that, on a balance of probabilities, the Plaintiff had sexually harassed [A.B.] in direct contravention of the [Hospital’s Anti-Harassment and Anti-Discrimination] Policy and the [Hospital’s] Code [of Conduct].
Paragraph 30 – “Given the severity of the Plaintiff’s conduct, and given the Hospital’s duty pursuant to the Ontario Occupational Health and Safety Act to ensure the safety of its employees, the Hospital concluded that it had no choice but to terminate the Plaintiff’s employment on a with cause basis.”
[5] The defendant does not plead any reason for the termination other than the allegations made by A.B.
[6] On this motion, the defendant has placed into evidence the termination letter dated February 14, 2020 which provides in part:
This letter is in follow up to the fact-finding meeting held on February 4, 2020 in the presence of Grace Regala, HR Business Partner and myself where we discussed the sexual harassment complaint against you by [A.B.]. Specifically, [A.B.] alleged that you [summary of allegations].
In the investigation meeting on February 4, 2020, you denied the allegations pertaining to your conduct towards [A.B.]. However, based on all of the information gathered through the hospital’s investigation, including other interviews and evidence, the Hospital has substantiated the allegations against you.
The hospital considers your actions to represent gross misconduct, and in total contravention to the Code of Conduct. As such, your employment is terminated with cause effective immediately.
[7] As noted above, the plaintiff commenced his claim less than a month after his termination. In his pleading he denies the allegations of wrongful conduct towards his co-worker, A.B., and denies that the defendant had just cause to terminate his employment.
[8] The plaintiff indicated an intention to examine A.B. for discovery stating he needed to examine A.B. as it was his harassment complaint that led to the plaintiff’s termination. The Hospital proposed Ms. Regala as its representative for discovery. The plaintiff refused to accept Ms. Regala and accordingly the Hospital brought this motion.
[9] In an exchange of emails, counsel for the plaintiff indicated that he would not need to examine A.B. if the defendant undertook not to call A.B. at trial. Defendant’s counsel responded by stating that although A.B. “had indicated at this time that he will not participate in the proceedings, I cannot foreclose the possibility that he will change his mind in the future.”
[10] Plaintiff’s counsel has confirmed that in the event the examination for discovery proceeds with A.B., he does not expect A.B. to answer questions concerning which he has no personal knowledge and will accept undertakings from defence counsel regarding matters outside A.B.’s personal knowledge.
[11] On this motion, the Hospital has filed an affidavit from its proposed discovery witness, Ms. Regala. Ms. Regala deposes that she conducted a formal investigation which included interviews with A.B., interviews with other staff members as well as a retired co-worker of A.B., and a meeting with the plaintiff. Ms. Regala also states that she became aware of a prior similar allegation made in 2008 and the Hospital has produced documents regarding the investigation into that allegation. Neither the termination letter nor the statement of defence references the 2008 allegation.
[12] The Hospital has also filed an affidavit of Adrian Di Lullo, Director of Employee and Labour Relations, who oversaw the investigation into the allegations made by A.B. against the plaintiff. Mr. Di Lullo states that he spoke and met with A.B. as well as union representatives. During these communications A.B. said that he did not wish to be examined, primarily because he did not wish to relive his traumatic experiences with the plaintiff. The union has taken the position that that A.B. is not a representative of the Hospital and that as a victim it would be unconscionable to have him participate in the litigation without his consent. Mr. Di Lullo states that he has made all reasonable efforts to persuade A.B. to participate in the discovery process, but A.B. has refused to do so. Mr. Di Lullo further deposes that he believes that the union would have filed a grievance against the Hospital had it attempted to compel or pressure A.B. into attending the discovery.
Law and Analysis
Issue 1 – Selection of Witness for Discovery
[13] Rule 31.03 of the Rules provides as follows:
31.03(1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (3) to (8).
(2) Where a corporation may be examined for discovery,
(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and
(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court.
[14] The law on the issue of when a court will order the examination of a representative other than the one chosen by the examining party is concisely summarized in the decision of Strathy J. (as he then was) in Ciardullo v Premetalco Inc.[^3]
9 … the examining party has a prima facie right to select the corporate officer, director, or employee to be examined, that the court will not lightly interfere with the selection, and that the onus is on the corporation to show that the person selected is inappropriate: Farris v. Staubach, [2004] O.J. No. 3961, 133 A.C.W.S. (3d) 948 (Sup. Ct.); Wexler v. Suncor Energy Products Inc. [2006] O.J. No. 4012, 151 A.C.W.S. (3d) 804 (Sup. Ct.), app. for leave to appeal dismissed, [2007] O.J. No. 994, (2007 CanLII 8027 (ON SCDC), 223 O.A.C. 141 (Div. Ct.). Those authorities indicate that in determining whether to substitute another corporate representative for the person selected, the court should consider:
whether the person selected is sufficiently knowledgeable in relation to the matters in issue;
whether it would be oppressive to require the person selected to be examined, for example because it would give rise to an excessive number of undertakings or unnecessarily take the person away from onerous management responsibilities; and
whether there would be prejudice to the examining party to be required to examine someone other than the person whom he or she selected.
[Emphasis in the original.]
[15] Ciardello is on all fours with the case at bar. It also involved a wrongful dismissal action in which an employee was terminated for cause following an allegation of sexual harassment by a co-worker and a subsequent workplace investigation. As in this case, the plaintiff sought to examine the complainant for discovery. The employer brought a motion under Rule 30.03(2) for an order substituting a human resources manager involved in the workplace investigation as its discovery representative. Justice Strathy upheld the Master’s decision requiring the employer to produce the complainant/ employee for discovery. The employer in Ciardello made many of the same arguments in that case that the employer makes in this case.
Whether the person selected is sufficiently knowledgeable in relation to the matters in issue
[16] The Hospital takes the position that Ms. Regala “has significantly greater direct knowledge of the underlying circumstances.” It says that the critical question is not whether the sexual harassment took place, but rather whether the Hospital had just cause to terminate the plaintiff. The Hospital submits that what is in issue is its investigation and whether there was a basis to terminate the plaintiff, not whether A.B. was telling the truth. It says that Ms. Regala is the only witness with personal knowledge of every step in the investigation, lacking personal knowledge only of the experience of sexual harassment by the plaintiff.
[17] The plaintiff says that A.B. clearly has sufficient knowledge about the main factual issue – whether the plaintiff sexually harassed A.B. In addition, the plaintiff asserts that cause must be determined objectively and that the honest intention of the employer in terminating the employee is not the standard utilized by the court. The plaintiff says that, at most, the defendant’s allegations about the propriety of the investigation may be relevant to its defence to the punitive and aggravated damages claims.
[18] In Ciardello, Justice Strathy found that the complainant Mrs. K “is clearly sufficiently knowledgeable about the facts surrounding the critical issue of whether she was sexually harassed by the plaintiff.”[^4]
[19] At paragraph 22, Justice Strathy stated:
22 I agree with the Master that the evidence of Mrs. K. goes to the heart of the case. One cannot escape the fact that the plaintiff will be required to meet Mrs. K.'s allegations that he sexually harassed her. All the other factors set out in Alleyne v. Gateway Cooperative Homes Inc. are secondary. It would be unfair to require the plaintiff to attempt to obtain evidence and admissions on this critical issue from a witness who has no first-hand knowledge of the events. The plaintiff is entitled to know, to explore, and to test the evidence against him prior to trial.
[20] The Hospital attempts to distinguish Ciardello by suggesting that in Ciardello Justice Strathy suggested that the critical issue was whether the sexual assault took place, whereas in this case the critical issue is the Hospital’s investigation. In Ciardello, as here, the discovery witness proposed by the employer was the individual who had conducted the investigation into the alleged sexual harassment and thus the case is not distinguishable on this point.
[21] Further, in its statement of defence, the Hospital focuses on the alleged sexual harassment of A.B., its belief in the veracity of A.B.’s accusations against the plaintiff, and the lack of credibility of the plaintiff. As is evident from both the statement of defence and the termination letter, the Hospital does not rely on any other incident of alleged misconduct to justify its decision to terminate the plaintiff’s employment for cause. It is clear from the Hospital’s own pleading and termination letter, that the issue of whether the sexual harassment took place is a critical issue, if not the critical issue.
[22] The Hospital asserts that Ms. Regala has significantly more direct knowledge of the matters in issue. However, the test is not which witness has the most knowledge or which witness would objectively be the best choice. The examining party is entitled to his or her choice of witnesses under this aspect of the test, provided that the proposed witness is sufficiently knowledgeable.
[23] The plaintiff asserts that A.B., a front-line unionized employee, is not able to inform himself of management’s decision to terminate another employee, nor would it be appropriate for him to do so. However, as noted above, plaintiff’s counsel has advised that he does not expect A.B. to answers questions of which he has no knowledge and is content with undertakings from defence counsel for the balance of the questions.
Whether it would be oppressive to require the person selected to be examined
[24] The Hospital asserts that it would be oppressive to it to require A.B. to be examined for discovery as there will be undertakings for the Hospital’s legal counsel for areas outside A.B.’s personal knowledge. In this regard, the Hospital relies on Nicolardi v Canadian Tire Corporation.[^5] In that case the plaintiff in a wrongful dismissal case sought discovery of Martha Billes, a member of the defendant’s board of directors and its majority shareholder. Master McAfee found Ms. Billes did not have sufficient knowledge, or any direct involvement in, the matters in issue. Accordingly, she would have had to inform herself of the matters in issue and provide “an excessive number of undertakings”.[^6] In those circumstances Master McAfee concluded that it would be unduly onerous for Ms. Billes to be examined for discovery. This case is very different in that A.B. does have direct knowledge of some of the matters in issue, including a critical issue.
[25] The defendant also argues that it would be prejudiced if A.B. failed to attend the discoveries or his refusal to answer any proper questions as it could face sanctions on a motion. However, this is putting the cart before the horse. If this scenario comes to pass, a court could consider the fact that the Hospital proposed a different representative if a motion is brought.
[26] The Hospital also states that it is, on its face, oppressive to compel an unwilling complainant in a sexual assault and harassment matter to be examined for discovery when he is not a party and when his version of events has already been made available to the plaintiff in the form of his written complaint. The Hospital points to no authority in support of this proposition but argues that the changing societal norms on sexual assault matters compels a consideration of this factor and an expansion of the traditional analysis. In this regard, the Hospital refers to amendments to the Criminal Code to protect dignity interests of sexual assault complainants.
[27] In Ciardello, the court refused to substitute another witness for the alleged victim of sexual harassment notwithstanding arguments made by the employer that the examination of the complainant would be “oppressive in the sense that she will be confronted by counsel for her alleged harasser and required to relive experiences that, according to the evidence, have caused her to experience feelings of shame, guilt, confusion, anger, fear and disgust”.[^7]
[28] The Hospital notes that Ciardello was decided prior to more recent decisions and legislative reform which have underscored the importance of protecting the privacy and dignity of sexual harassment complainants and suggests that Ciardello can be distinguished on that basis. However, Ciardello is on all fours with the case at bar and is binding upon me.
[29] As in Ciardello, there is no evidence or suggestion that the plaintiff’s selection of A.B. as the discovery representative is perverse, illogical, vindictive or made for a collateral purpose, such as intimidation.[^8]
Whether there would be prejudice to the examining party to be required to examine someone other than the person whom he or she has selected
[30] The Hospital submits that there is no prejudice to the plaintiff if Ms. Regala is examined instead of A.B. It submits that if A.B. chooses to testify at trial and put his version of events before the trial judge, the plaintiff will have the opportunity to obtain evidence and admissions on what it calls a “collateral issue” at that time.
[31] I do not accept this submission. As stated by Justice Strathy in the passage from Ciardello quoted above, it would be unfair to the plaintiff to attempt to obtain evidence and admissions on the allegations of sexual harassment from someone who does not have first-hand knowledge. The plaintiff is entitled to test the evidence against him prior to trial. Moreover, the Hospital’s submission ignores the broad purposes of examinations for discovery.[^9]
Conclusion on Issue 1
[32] For the reasons set out above, I am not satisfied that the Hospital has discharged the onus on it to displace the plaintiff’s prima facie right to select the officer, director or employee to be examined.
Issue 2 – Whether the examination of A.B. ought to proceed solely in writing
[33] The Hospital asks for an order, in the alternative, that the examination for discovery of A.B. should proceed by way of written questions and answers. The plaintiff opposes.
[34] The Rules allow for written questions and answers, at the option of the examining party. Rule 31.02 provides as follows:
31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.
(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise.
[35] The plaintiff does not consent.
[36] The Hospital refers to Rule 2.01 in its factum on this issue. Rule 2.01 deals with the effects of non-compliance with the Rules and is, as such, inapplicable. Moreover, Rule 2.01 cannot be used to rewrite Rule 31.02, which makes written discoveries available at the option of the examining party.
[37] The Hospital further submits that the discovery should take place by written questions and answers “as suggested by Justice Strathy” in Ciardello. However, it is clear from the context that Justice Strathy was suggesting a possible consent agreement between the parties. As noted, no consent is present in this case.
Disposition
[38] The Hospital’s motion is dismissed.
[39] I accept that the examination for discovery may be very distressing for A.B. I anticipate that counsel will confer and find ways to minimize any distress. If not, counsel may bring a motion for directions regarding the conduct of the discovery.
[40] If the parties are unable to agree on costs, they may file written costs submissions not to exceed three pages (excluding costs outlines) by August 9, 2021 with me via my assistant trial co-ordinator Mr. Magnante at marco.magnante@ontario.ca.
Master L. La Horey
Date: July 12, 2021
[^1]: R.R.O. 1990, reg. 194 [^2]: The defendant has asked that I exercise my discretion to refer to the employee by his initials or a pseudonym in my reasons for decision. The plaintiff has consented. The defendant is not seeking a sealing order. As the name of the proposed witness is not relevant to the issues, and, for reasons of privacy, I have exercised my discretion to refer to him by random initials. [^3]: [2009] O.J. No. 3625 (SCJ) at para 9 [^4]: Ibid at para 21 [^5]: 2018 ONSC 2861 (Master) [^6]: Ibid at para 18 [^7]: Ciardello at para 11 [^8]: Ibid at para 20 [^9]: The purposes of discovery are summarized in Green v Viens, 2018 ONSC 498 (Master) at para 24