Court File and Parties

COURT FILE NO.: CV-18-00605587 MOTION HEARD: 20220121 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Benjamin Hemming, Plaintiff AND: Juice DMS Advertising Limited, Yellow Pages Limited, Craig Forman, Susan Kudzman, Donald H. Morrison, Kalpana Raina, David A. Eckert, Rob Hall and Paul W. Russo, Defendants

BEFORE: Associate Justice B. McAfee

COUNSEL: J. Beeho, Counsel, for the Moving Party, the Plaintiff D. A. Stamp, Counsel, for the Responding Parties, the defendants Juice DMS Advertising Limited and Yellow Pages Limited

HEARD: January 21, 2022

Reasons for Decision

[1] The contested issue remaining on this motion concerns the appropriate representative to be examined for discovery on the behalf of the defendants Juice DMS Advertising Limited (DMS) and Yellow Pages Limited (Yellow Pages) (collectively the corporate defendants). Although this relief was sought on a motion brought by the plaintiff Benjamin Hemming (the plaintiff) instead of on a motion brought by the corporate defendants under Rule 31.03(2)(a), the parties agree to proceed in this manner for the determination of the issue.

[2] On June 30, 2016, the plaintiff’s employment with DMS was terminated. On September 29, 2016, the plaintiff commenced action number CV-16-00561427 against DMS and Oriole Media Corp. for wrongful termination (the wrongful dismissal action).

[3] On February 15, 2018, the former president and chief executive officer of DMS, Neil Sweeney (Sweeney) commenced action number CV-18-00592168 against DMS and another Yellow Pages subsidiary, Yellow Pages Digital & Media Solutions Limited for wrong dismissal (the Sweeney action). In the statement of defence filed in the Sweeney action, the Sweeney defendants plead that just cause is asserted for the termination. The Sweeney defendants allege that Sweeney engaged in serious misconduct including threatening violence in a text message against an employee who had recently been terminated (the text message). The text message was sent in or about July 2016 and appears to refer to the plaintiff.

[4] On September 20, 2018, the plaintiff commenced the within action against the corporate defendants and seven individual defendants who were directors of Yellow Pages, for damages in the amount of $1,200,000. as a result of an alleged failure to provide an explanation and apology for failure to disclose the text message and failure to promptly provide a copy of the text message to the plaintiff when the plaintiff requested it in 2018 (the present action).

[5] The corporate defendants deny any liability. The corporate defendants plead that the text message was brought to their attention in September 2016 and Sweeney’s employment was then terminated for cause, that they did not believe there was a risk of violence, and as the issue was raised in the context of the wrongful dismissal action, it was dealt with through legal counsel.

[6] On March 29, 2021, on consent, the present action was dismissed against the individual defendants.

[7] The plaintiff seeks to examine for discovery David Eckert (Eckert), the president and chief executive officer of DMS and argue that he is an appropriate representative.

[8] The corporate defendants submit that Eckert is an inappropriate representative. The corporate defendants submit and that Adrian Fitz-Gerald (Fitz-Gerald), executive advisor employed by Yellow Pages Digital and Media Solutions Limited, which according to his affidavit, is the successor of DMS, is a more appropriate witness.

[9] Rule 31.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states:

31.03(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.

[10] The parties agree that notwithstanding the manner in which this issue is before the court, the corporate defendants bear the onus on this motion.

[11] The parties agree that the applicable test is cited in Farris v. Staubach, [2004] O.J. No. 3961 (Ont. S.C.J.) at para. 5 (see also Wexler v. Suncor Energy Products Inc. [2006] O.J. No. 4012 (Ont. S.C.J.) at para. 5, as cited in Shokar v. Windsor Casino Limited, 2018 ONSC 7644 (Ont. S.C.J.) at para. 4):

1. The examining party has the prima facie right to select the officer, director or employee to be examined.
2. The onus is on the corporation to show that the person selected is inappropriate and the court will not lightly interfere with the choice of the examining party.
3. In deciding whether one corporate representative should be substituted for another, the court should consider the following: a. Is the person selected sufficiently knowledgeable in relation to the matters in issue? b. Would it be oppressive to require the person selected by the opposing party to be examined, for example by the witness being required to give an inordinate number of undertakings or unnecessarily being taken away from onerous managerial responsibilities? c. Would there be prejudice to the examining party to be required to examine someone other than the person whom he or she has selected?

[12] As stated by B. Wright J. in Canadian Imperial Bank of Commerce v. Cigam Entertainment Inc., [1999] O.J. No. 2011 at para. 23:

Presidents of corporations are not immune from being produced on examinations for discovery, however, they should only be required to attend such examinations where they have sufficient knowledge of the matters in dispute, which means at least some direct involvement with the parties and the transactions out of which the claims arise. …

[13] The evidence of Fitz-Gerald is that since joining DMS he has rendered services to DMS, its affiliates and the parent company, Yellow Pages. He has been employed in human resources roles since January 5, 2015. His evidence is that he was personally involved at each stage of the events at issue in the lawsuit, being: (a) when the text message was brought to the corporate defendants’ attention in September 2016; (b) the steps taken by the corporate defendants in and around September 2016 to deal with the text message including investigation, Sweeney’s termination and surveillance of Sweeney); and (c) the corporate defendants’ response when the plaintiff raised the issue of the text message in July 2018.

[14] It is Fitz-Gerald’s evidence that Eckert only joined the Yellow Pages organization in September 2017, after the events of 2016. Eckert’s involvement is limited. He was one of many people put on notice by the plaintiff in 2018 when the plaintiff raised the issue of the text. The corporate response was handled by counsel, due to the connection with the wrongful termination action. Fitz-Gerald’s belief is that Eckert deferred to legal counsel and did not direct the response.

[15] Although Eckert may be bound by the Yellow Pages Code of Ethics and Charter, referred to in the pleadings, that does not satisfy me that he has sufficient knowledge of the specific matters in dispute in this case.

[16] Sufficient direct involvement is not demonstrated by the fact that Eckert’s name appears on a listing of certain documents in the schedules to the corporate defendants’ affidavit of documents (Ward v. Manulife Financial, 2002 CarswellOnt 473 (Ont. S.C.J.) at para.8).

[17] I am satisfied that Eckert is not sufficiently knowledgeable in relation to the matters at issue. I am satisfied that Fitz-Gerald was personally involved and has sufficient knowledge of the matters at issue.

[18] Eckert is responsible for managing a business with revenues of $335.5 million in 2020 and approximately 686 employees across Canada. He is responsible for providing strategic direction for and managing an extensive turnaround of the business from a print directory to a digital organization, a turnaround which involves numerous ongoing initiatives across the country. I am satisfied that it would be unfairly onerous to require him to attend an examination in light of his responsibilities.

[19] I was not referred to evidence of prejudice to the plaintiff if Fitz-Gerald is examined for discovery on behalf of the corporate defendants.

[20] The parties did not take the position that this is a landmark case.

[21] For these reasons, I am satisfied that Eckert is an inappropriate representative and Fitz-Gerald is the appropriate representative.

[22] With respect to the issue of costs of the motion, if successful the plaintiff seeks costs on a substantial indemnity basis in the amount of $4,000.00. If successful, the corporate defendants seek costs of the motion on a partial indemnity basis in the all-inclusive amount of $11,237.85.

[23] This motion was originally returnable on September 23, 2021, at which time additional relief concerning a further and better affidavit of documents was being pursued. Insufficient time was booked for the hearing and the parties consented to an adjournment of the motion and increased the time requested for hearing.

[24] On a without prejudice basis, following the initial return date for the motion, counsel for the corporate defendants wrote to plaintiff’s counsel addressing the specific documents listed in the plaintiff’s “chart of deficiencies.” Shortly before the second return date, plaintiff’s counsel advised counsel for the corporate defendants that the relief concerning the appropriate corporate representative was the only relief being pursued at the return of the motion. The corporate defendants seek their costs of the entire motion at this time.

[25] I am satisfied that the corporate defendants, who were successful on the contested issue argued, are entitled to costs of the motion as they relate to that issue. However, as confirmed by plaintiff’s counsel, the motion for a further and better affidavit of documents is not being abandoned but rather deferred until following examinations for discovery when the production issues might be better addressed, if necessary. The issue of a further and better affidavit of documents and/or costs of the motion as it relates to a further and better affidavit of documents may be brought back on following examinations for discovery, if appropriate.

[26] Having regard to all of the circumstances of the motion with respect to the relief pursed, I exercise my discretion to award costs in the all-inclusive amount of $4,000.00 payable to the corporate defendants. In my view this is a fair and reasonable amount that the plaintiff could expect to pay for costs in all of the circumstances of the contested relief pursued. In all of the circumstances of this matter I am also satisfied that costs payable other than within 30 days would be more just. Costs of the motion are payable to the corporate defendants in the cause.

[27] Order to go as follows:

1. The plaintiff shall examine Adrian Fitz-Gerald as the representative of the corporate defendants.
2. Costs of the motion as they relate to the relief concerning the corporate representative to be examined for discovery are fixed in the all-inclusive sum of $4,000.00 payable by the plaintiff to the corporate defendants in the cause.
3. The relief concerning service of a further and better affidavit of documents from the corporate defendants and/or costs of the motion as they relate to the relief concerning a further and better affidavit of documents from the corporate defendants may be brought back on following examinations for discovery, if appropriate.

Associate Justice B. McAfee Date: April 19, 2022