Court File and Parties

COURT FILE NO.: CV-17-00578391 MOTION HEARD: 20220330 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fred Khakpoor, Plaintiff AND: Toronto Transit Commission, Defendant

BEFORE: Associate Justice B. McAfee

COUNSEL: G. Agostino, Counsel, for the Moving Party, the Defendant C. Kim, Counsel, for the Responding Party, the Plaintiff

HEARD: March 30, 2022

Reasons for Decision

[1] This is a motion brought by the defendant for various relief arising the from the examination for discovery of the plaintiff held on May 14, 2019. The contested issues remaining on this motion are production of the documents referred to at paragraph 3 of the amended amended notice of motion and costs. The documents referred to at paragraph 3 of the amended amended notice of motion are any and all documents identifying the source of income reported in the income tax returns produced by the plaintiff on or about March 2, 2022, for the plaintiff and the Analitix Group Inc. for the years 2013 to 2017, including but not limited to T4s and T4As.

[2] The request for this production was first made following the plaintiff’s production of income tax returns on or about March 2, 2022. The income tax returns were produced in response to a question originally taken under advisement on the plaintiff’s examination for discovery.

[3] The parties agree that I may consider the request for documents as a question asked on a re-attendance on examination for discovery. It is the defendant’s position that the request is a proper follow-up question and is relevant. It is the plaintiff’s position that the request is not a proper follow up question and is not relevant.

[4] This action was commenced on July 6, 2017. The plaintiff alleges that he was employed by the defendant from on or about November 6, 2013, and his employment was wrongfully terminated on or about April 24, 2017. The plaintiff seeks the sum of $100,00.00 less deductions for pay in lieu of notice, the sum of $200,000.00 being the value of the pension the plaintiff should have received, the sum of $50,000.00 for vacation pay, and punitive damages in the amount of $100,000.00.

[5] In its statement of defence dated September 19, 2017, the defendant denies that the plaintiff was an employee of the defendant. The defendant pleads that the plaintiff is the owner and officer and director of Analitix and that the plaintiff was employed by, or in the alternative contracted by, Ian Martin Information Technology (IMIT). IMIT is a consultant engaged by the defendant to provide certain services for specific information technology projects carried out by the defendant. The defendant pleads that in exchange for services provided by the plaintiff to the defendant on behalf of IMIT, the defendant paid IMIT.

[6] The applicable rules are as follows:

Rule 31.06 of the Rules of Civil Procedure provides:

31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

Rule 1.04 provides in part:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these 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.

Rule 29.2.03(1) provides:

29.2.03(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 justified;

(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.

[7] In Ontario v. Rothmans Inc., 2011 ONSC 2504 (Ont. S.C.J.) Justice Perell summarizes the principles concerning the scope of questioning on examinations for discovery at para. 29. (See also Holbrook v. FX Displays Packaging Logistics Inc., 2017 ONSC 4757 (Ont. S.C.J.) at para. 16.)

[8] I am satisfied that the request is a proper question asked on a re-attendance. The question is asked following receipt of an answer to a question originally taken under advisement (under advisement no. 7) and subsequently answered on or about March 2, 2022. The question is a proper follow up question seeking production of documents disclosing the source of income which was not identified in the answer provided to under advisement no. 7.

[9] I am also satisfied that the question is relevant based on the pleadings. At paragraph 9a of the statement of claim the plaintiff pleads that he worked exclusively for the defendant from November 2013 to April 24, 2017. At paragraph 17 of the statement of defence the defendant denies that the plaintiff worked exclusively at the defendant from November 13, 2017 to April 24, 2017.

[10] Whether the plaintiff worked exclusively for the defendant may be a factor considered by the court when determining whether a person is an employee or independent contractor. In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 at paras. 46 to 48, Justice Major states in part:

[46] In my opinion, there is no one conclusive test which can be universally applied to determine whether a person is an employee or an independent contractor. … what must always occur is a search for the total relationship of the parties…

[47] …The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.

[48] It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case.

[11] In Belton v. Liberty Insurance Co. of Canada, [2004] O.J. No. 3358 (C.A.) at para 11, the court references whether the agent was limited exclusively to the service of the principal as an appropriate factor to be considered in distinguishing independent contractors from employees in the circumstances of a commissioned agent.

[12] While the plaintiff submits that answering the request would be onerous, the plaintiff’s evidence at question 411 of his examination for discovery was that neither the plaintiff nor Analitix provided services in exchange for income or compensation from any other source other than the defendant. I do not agree that the request would be onerous in light of the plaintiff’s evidence.

[13] For these reasons, the plaintiff shall provide the documents referred to at paragraph 3 of the amended amended notice of motion being any and all documents identifying the source of income reported in the income tax returns produced by the plaintiff on or about March 2, 2022, for the plaintiff and Analitix for the years 2013 to 2017, including but not limited to T4s and T4As.

[14] With respect to costs of the motion, the defendant was successful on the contested issue argued. Other relief was only resolved following service of the motion record and shortly before the return of the motion. The defendant is entitled to costs of the motion. Having regard to all of the circumstances of this motion, the all-inclusive sum of $1,500.00 is a fair and reasonable amount that the plaintiff could expect to pay for costs. The costs are payable to the defendant within 30 days.

Associate Justice B. McAfee Date: April 19, 2022