Hemming v. Oriole Media Corp., et al., 2022 ONSC 4368

COURT FILE NO.: CV-16-000561427-0000

DATE: 22 07 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BENJAMIN HEMMING

Plaintiff

and

ORIOLE MEDIA CORP. and JUICE DMS ADVERTISING LIMITED

Defendants

BEFORE: Associate Justice Ilchenko

COUNSEL:

Jason Beeho for the Plaintiff Benjamin Hemming (“Hemming” or the “Plaintiff”)

Eric Brosseau for the Defendant Oriole Media Corp. (“Oriole”) and the Third Party, Neil Sweeney (“Sweeney”)

No one appearing for Defendant Juice DMS Advertising Limited (“JDAL”)

HEARD: April 21, 2022

RELEASED: July 26, 2022

E N D O R S E M E N T

I) Nature of Relief Sought by Plaintiff

[1] The Plaintiff has brought a motion (the “Motion”) for an Order compelling the Defendant, Oriole, and the Third Party, Sweeney, to answer all undertakings not yet answered or not yet adequately answered, those questions taken under advisement but not yet answered, and those questions refused during the examination for discovery conducted on April 1, 2021 (the “Discovery”) and an Order requiring Sweeney to re-attend, as a representative of Oriole to answer all questions reasonably arising from responses provided and from responses ordered by this Court as set out in the Transcript of the Discovery filed on this Motion (the “Sweeney Transcript”).

[2] Originally the Motion brought by the Plaintiff was more expansive dealing with 8 allegedly outstanding undertakings, and a further 7 Under Advisements and 28 refusals that required adjudication.

[3] Prior to the hearing, counsel were able to reduce the number of questions to be adjudicated by me to 17 refusals grouped and relating to three specific issues that I will detail below.

[4] I am advised by counsel that the other questions originally listed on the Refusals, Undertakings and Under Advisements Charts in the Motion Record of the Plaintiff are not to be determined by me. Accordingly, they will not be the subject of these reasons.

[5] Counsel for the Plaintiff has provided to me a Refusals Chart (the “Refusals Chart”) that I have attached at Schedule “A” to these reasons.

II) Context in which the Motion is Brought

[6] The Pleadings in this Action (the “Action”) filed by the Plaintiff, the Defendants and the Third Party are appended as exhibits A-F to the Affidavit of Michelle Plourde, the legal assistant to Counsel for the Plaintiff, sworn April 8, 2022, in support of the Plaintiff’s Motion (the “Plourde Affidavit”) and reach almost 53 pages.

[7] A summary of the positions of the parties from the Pleadings, and quotations from their specific respective positions taken on the issues to be determined on this Motion, are necessary to place the questions grouped under the 3 issues being determined on this Motion in the broader context of this Action, particularly as one of the major grounds of opposition by Respondents to answering the questions grouped under the three issues is whether those questions are relevant to issues raised in the Pleadings by the Parties, and specifically issues relevant to the Plaintiff’s pleadings.

The Statement of Claim

[8] The Plaintiff alleges in his Statement of Claim issued September 29, 2016 (the “Statement of Claim”) in this Action (the “Action”) that the Plaintiff commenced this Action against:

a) the Defendant Oriole for an accounting of all commissions allegedly payable to the Plaintiff for the period January 1, 2016, to March 17, 2016 and damages for unpaid wages in the total amount of the commissions determined in the accounting less the commissions that the Plaintiff has actually received for that period; and

b) the Defendant JDAL

i) for alleged commissions owing for the period March 17, 2016 to June 30, 2016, as well as

ii) an additional claim for wrongful dismissal damages in the amount of $386,505.12, less the amount of any termination pay that the Plaintiff has received,

iii) reimbursement for out-of-pocket expenses incurred as a consequence of his wrongful dismissal,

iv) damages for lost wages for violation of his right to equal treatment in employment without discrimination on the basis of family status, pursuant to the Ontario Human Rights Code,

v) General damages for violation of his right to equal treatment in employment without discrimination on the basis of family status, pursuant to the Ontario Human Rights Code, in the amount of $50,000; and

vi) Punitive and aggravated damages in the amount of $250,000;

[9] In brief, Hemming alleges in the Statement of Claim that he had been hired as an account executive in July of 2014 by the Defendant Oriole, compensated by base salary and commissions. The Plaintiff alleges that the Third Party Sweeney, then CEO of Oriole, made representations and offered inducements to the Plaintiff to move from employment at Yahoo to Oriole. Oriole had allegedly operated under the name “Juice Mobile” until March 17, 2016 on which date (the “Closing Date”) the “Juice Mobile” business was acquired by the Defendant JDAL (the “Transaction”).

[10] The Plaintiff alleges that although he continued in his role on a status quo basis following the closing of the Transaction, unbeknownst to him at the time he had become an employee of JDAL upon the closing of the Transaction, and therefore JDAL replaced Oriole as the payor of Hemming's compensation. The Plaintiff alleges he received no offer letter from JDAL regarding his change of employment.

[11] The Plaintiff alleges his employment was terminated by JDAL on a without cause basis on June 30, 2016. Prior to his termination, the Plaintiff alleges that Sweeney, prior to the closing of the Transaction, amended his commission structure that diminished his compensation.

[12] The Plaintiff alleges that his termination is, inter alia, related to his requesting a 2-week parental leave on the birth of his first child that was pending when he was terminated, and claims that Sweeney had made negative comments about fathers who take parental leave, stating in paragraph 25 of the Statement of Claim:

“25. Mr. Hemming pleads that Mr. Sweeney (who acted as Chief Executive Officer of the Juice Mobile business throughout Mr. Hemming's period of employment by the Defendants). begrudged his request for parental leave and viewed it as a sign of "weakness." In that regard, Mr. Sweeney made his view of paternity leave abundantly clear at a work-related function on or about December 2, 2015, when he made statements to Mr. Hemming (and others) making fun of and putting down fathers who take parental leave/take time off work to be with their children.”

[13] As a result, Hemming is claiming discrimination based on family status under the Ontario Human Rights Code and damages resulting from that discrimination,

[14] Relevant to this motion, the Plaintiff states the following specifically relating to the claim of “Bad Faith Conduct” in the Statement of Claim:

29. Mr. Hemming states that his dismissal has been dealt with in a harsh, high-handed and oppressive manner; and that JDAL has acted in bad faith. In that regard, Mr. Hemming pleads and relies upon the following (the "Bad Faith Conduct"):

(a) JDAL terminated Mr. Hemming's employment in a callous and bad faith manner, at a vulnerable point in his life (i.e. approximately two (2) months prior to the arrival of his first child). In that regard, news of his dismissal was delivered by Mr. Sweeney, by way of the haughty and insensitive pronouncement to Mr. Hemming that "You're out."

(b) Having failed to provide Mr. Hemming with any relevant details regarding the Transaction, JDAL attempted to avoid and deny Mr. Hemming's legal entitlements by purporting to rely (i.e. in the dismissal letter that was presented to him on the Termination Date, and also in subsequent correspondence) upon terms of an employment agreement that it knew or ought to have known was no longer of any force and effect.

(c) Following the Termination Date, JDAL purported to justify Mr. Hemming's dismissal with false and disparaging allegations to the effect that he had had "a negative impact" on his colleagues and that he had "caused commotion" within the sales team. In the same vein, JDAL also attempted to intimidate and dissuade Mr. Hemming from pursuing his legal remedies, by falsely accusing him of "stirring up trouble" with his former co-workers after his dismissal.

30. Mr. Hemming pleads that JDAL's conduct in this matter warrants an award of aggravated and punitive damages; and, in that regard, Mr. Hemming claims aggravated and punitive damages as against JDAL in the amount of $250,000.

Intentional Infliction of Emotional Distress

31 JDAL's Bad Faith Conduct, as detailed herein, caused Mr. Hemming to suffer considerable mental distress: and Mr. Hemming states that JDAL either (i) intended for the said Bad Faith Conduct to cause harm to him, or (ii) in the alternative, knew or reasonably ought to have known that the said Bad Faith Conduct would cause harm to him. Accordingly, Mr. Hemming claims damages as against JDAL for the intentional infliction of emotional distress in the amount of $250,000.”

Statements of Defence

[15] The Defendant Oriole denies in its Statement of Defence (the “Oriole Defence”) that the Plaintiff had been induced to leave Yahoo to come to Oriole, that no commissions are owing to the Plaintiff by Oriole, and any commissions payable are the responsibility of JDAL, that Hemming accepted the changes to the commission structure, which was applicable to all Oriole employees, and continued to receive commissions, that Hemming was aware of the assignment of his employment and employment agreement to JDAL as a result of the Transaction.

[16] The Defendant JDAL in its Statement of Defence (the “JDAL Defence”) also denies that the Plaintiff had been induced to leave Yahoo to come to Oriole, that the Plaintiff’s employment agreement specifically provided that Hemming could be terminated without cause and with no compensation other than the Employment Standards Act minimum payments, that no commissions are owing to the Plaintiff by JDAL, that the commission structure in the Plaintiff’s Compensation Plan signed by the Plaintiff, and that the Plaintiff signed a copy of the 2016 Compensation Plan amendment, could be modified or terminated at any time, and any commissions payable are the responsibility of JDAL, that Hemming accepted the changes to the commission structure, and continued to receive commissions, that Hemming was aware of the assignment of his employment and employment agreement to JDAL as a result of the Transaction.

[17] The Defendant JDAL alleges that the Plaintiff’s employment was terminated after an assessment of the viability of the Juice Mobile business after the Transaction closed, and that Hemming was one of 11 former Oriole employees that were terminated as a result of this viability assessment.

[18] JDAL denies all of the claims for damages, stating specifically the following with respect to the “Bad Faith Conduct” alleged by the Plaintiff relevant to the issues on this Motion:

“31. As set out above, JDAL denies that Hemming is entitled to any damages for unpaid wages or human rights damages.

32. JDAL denies that Hemming is entitled to any aggravated or punitive damages as alleged in Paragraphs 24 - 30 of the Claim.

33. At all times in dealing with Hemming and particularly regarding his termination, JDAL acted in good faith. At no time did JDAL do anything to cause Hemming mental distress. JDAL denies that Hemming is entitled to any damages for intentional infliction of emotional distress.

34. JDAL pleads that the Hemming's damages are non-existent, excessive or remote and he is put to the strict proof thereof. Further, JDAL pleads that Hemming has failed to take reasonable steps to mitigate any damages which he may have suffered.”

Third Party Claim and Defences by Third Party Sweeney

[19] The Defendant JDAL also commenced a Third Party Claim against Sweeney (the “Third Party Claim”), claiming, inter alia, damages for breach of contract and contribution and indemnity for any amount awarded to the Plaintiff. Sweeney was terminated as CEO of JDAL in September 2016, approximately 3 months after the Plaintiff was terminated.

[20] In paragraph 6 of the Third Party Claim JDAL pleads:

“6. In the Statement of Claim, the Plaintiff. Hemming, alleges that JDAL is liable for damages for wrongful dismissal, lost wages and general damages for violation of Hemmings' right to equal treatment in employment without discrimination on the basis of family status pursuant to the Ontario Human Rights Code, R.S.O. 1990. c. H. 19, punitive and aggravated damages for JDAL's allegedly bad faith conduct pertaining to Hemming's termination, and damages for intentional infliction of emotional stress. Such claims relate to Hemming's termination and the manner in which such termination was carried out by JDAL and, specifically, by Sweeney.

7. All of the claims made in the Statement of Claim against JDAL, (which JDAL does not admit in any event, but denies) are claims arising directly from Sweeney's conduct. If Sweeney's conduct is found to be non-compliant with he Ontario Human Rights Code, or to constitute intentional infliction of emotional distress and/or bad faith, then Sweeney is liable to JDAL for damages.

8. In the event that Hemming was subject to violations of the Ontario Human Rights Code by Sweeney, intentional infliction of emotional distress by Sweeney, and bad faith conduct by Sweeney with respect to his termination from JDAL, which is not admitted but is specifically denied, then Sweeney is liable to JDAL for damages relating to such conduct. If it is found that Sweeney's conduct was non-compliant with the Human Rights Code, and/or constitutes bad faith or caused emotional distress, then such conduct goes beyond the scope of Sweeney's employment and constitutes a breach of the implied term of Sweeney's employment relationship with JDAL to use reasonable business judgment and skill in carrying out his managerial duties as Chief Executive Officer of JDAL, JDAL pleads that Sweeney is liable to JDAL for damages for such breach of contract in an amount equal to any award which may be made in favour of the Plaintiff against JDAL.

9. JDAL pleads that if it is found vicariously liable to the Plaintiff, Hemming, it is entitled to claim contribution and indemnity from Sweeney with respect to any award which may be made in favour of the Plaintiff against JDAL.

10. As the Chief Executive Officer of JDAL. Sweeney was the senior managerial employee and he held himself out to be capable of performing the duties and responsibilities of his employment with the necessary degree of skill and competence. If he misused his managerial position to engage in direct and intentional wrongdoing with respect to Hemming's termination. then Sweeney is liable to indemnify JDAL. for any amounts to which JDAL is found vicariously liable for Sweeney's actions.”

[21] Sweeney filed a Defence in this main Action (the “Sweeney Defence”) in which Sweeney pleads that Oriole was incorporated by Sweeney on or about April 7, 2010 and that on March 17, 2016, Yellow Page Digital, through its wholly owned subsidiary, 9644105 Canada Inc ., acquired substantially all of the assets of Oriole, including the name "Juice Mobile" in the Transaction and that 9644105 then changed institutional name to JDAL and continued to operate the business of Juice Mobile. After the Transaction, Oriole no longer owned or operated the business known as "Juice Mobile", nor did Oriole retain any ownership interest in JDAL and that JDAL became a wholly-owned subsidiary of Yellow Pages.

[22] Sweeney denies he induced Hemming to leave Yahoo, and that Hemming accepted the amendments to his Oriole commission structure prior to the Transaction. Sweeney pleads that he had minimal contact with Hemming, and that there were three levels of management between Sweeney as CEO and Hemming. Sweeney denies that Hemming was owed commissions and that Hemming knew that his employment had been transferred to JDAL.

[23] Sweeney specifically pleads:

“14. Contrary to the allegations in the Statement of Claim, Sweeney did not, at any time, act contrary to the Ontario Human Rights Code, R.S.O. 1990, c. 11.19, or in any manner giving rise to intentional infliction of emotional distress or in bad faith with respect to Hemming's employment and/or his termination.

15. Hemming was not terminated as a result of his decision to take parental leave or for any other reason contrary to law. The fact is that, following the Transaction, JDAL decided to terminate Hemming without cause. JDAL also terminated two other employees without cause on the same day and paid those employees severance in lieu of notice. Only Hemming decided to commence litigation against IDAL and Oriole. Sweeney repeats and relies upon the allegations contained in paragraph 27 of JDAL's Statement of Defence.

16. Sweeney specifically denies that he at any time expressed any negative views or made any comments or observations to Hemming in respect of Hemming's decision to take parental leave. The allegations contained in paragraph 25 of the Statement of Claim are false and without merit. Sweeney did not make any negative statements to Hemming about his parental leave during the course of a work-related function on December 2, 2015 or at any other time. Sweeney was and continues to be supportive of parental leave, including that during his time at JDAL he supported similar requests for parental leave by other male employees.

17. At all material times, Sweeney acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL, including in connection with Hemming's without cause termination.

18. If Hemming sustained the losses or damages, as alleged in the Statement of Claim, which is denied, such losses or damages are the responsibility of JDAL as the employer of Hemming at the material times, and not Sweeney. Hemming's employment agreement was assigned to JDAL as part of the Transaction. Accordingly, JDAL assumed full responsibility for Hemming's continued employment and any termination thereof, including with respect to all commission payments and/or severance entitlements from March 17, 2016 onwards.”

[24] Sweeney also filed a similarly worded defence to the Third Party Claim (the “Sweeney Third Party Defence”) in which Sweeney also requests contribution and indemnity from JDAL.

(Collectively, the Statement of Claim, the Oriole Defence, the JDAL Defence, the Sweeney Defence, the Third Party Claim and the Third Party Defence being the “Pleadings”)

The Discoveries conducted

[25] On January 24, 2018 an examination for discovery of the representative of JDAL took place, but counsel for Oriole did not attend. Associate Justice McAfee issued reasons on September 18, 2018 where certain refusals were ordered to be answered (the “McAfee Endorsement”). Those reasons were provided by counsel at this hearing. In addition, the Transcript of Jennie Lee dated November 29, 2018, a representative of JDAL at an examination on the undertakings ordered to be answered by Associate Justice McAfee, was also entered into evidence and referred to in the Respondents’ Factum (the “Lee Examination”).

[26] Relevant to this motion the McAfee Endorsement states:

“[10] Refusal nos. 17, 18, 19, 29 and 30: Mr. Sweeny's employment at Juice DMS was terminated approximately three months after the termination without cause of the plaintiff's employment with Juice DMS. I am satisfied that refusal nos. 17, 18, 19 and 29 are relevant based on the pleadings and in particular based on paragraphs 9, 14, 15 and 20-31 of the statement of claim. With respect to refusal no. 30, I am not satisfied of the relevance of the termination letter. Refusal no. 30 need not be answered. Refusal nos. 17, 18, 19 and 29 shall be answered.”

[27] Associate Justice Robinson also apparently ruled on issues relating to the JDAL discovery, but that case was not referred to in the materials, but referred to in correspondence between counsel, on the basis that AJ Robinson allegedly found (Exhibit 6 to the Hostrawser Affidavit, as defined below):

“Master Robinson's decision states that "JDAL's answer confirmed that Mr. Sweeney's termination was not related in any way to apparent violation of the Ontario Human Rights Code." His Honour also held that "taking into account those answers given to the refusals ordered by Master McAfee to be answered" (i.e. JDAL's answers regarding the reasons for which Mr. Sweeney was terminated, which denied that Mr. Hemming's termination played any role), His Honour was "not satisfied that any investigation report relied upon in terminating Mr. Sweeney is relevant." You have all the evidence to which you are entitled regarding Mr. Sweeney's termination.”

[28] On April 1, 2021 Sweeney attended the examination for discovery on his own behalf as Third Party and on behalf of the Defendant Oriole.

[29] On October 22, 2021 the Plaintiff was examined for discovery.

[30] On August 18, 2021 the Plaintiff served the Notice of this Motion. According to the Plourde Affidavit, certain of the answers to the Undertakings, Under Advisements and Refusals were provided on January 19, 2022, and after some further exchanges between counsel and some further answers to questions, this Motion was heard on April 21, 2021.

Evidence of the Respondents on this Motion:

[31] The Respondents on this Motion have filed the Affidavit of Amanda Hostrawser, a law clerk employed by counsel for the Defendant Oriole and Sweeney, sworn April 13, 2022 (the “Hostrawser Affidavit”). Of relevance to the issues to be determined on this Motion are the following paragraphs:

“4. Jennie Lee was examined on behalf of JDAL on November 29, 2018, further to Master McAfee's reasons for decision dated September 18, 2018. A copy of the transcript is attached as Exhibit 3. The transcript reflects that certain of the refusals that Master McAfee ordered answered were answered by Mr. Cosgriffe in letters which were marked as exhibits to the examination. Our office has requested but has yet to receive copies of those exhibits from Mr. Beeho.

5. Attached as Exhibit 4 are answers to undertakings of Jennie Lee delivered on March 20, 2019. The undertakings arose out of Ms. Lee's examination on behalf of JDAL in November 2018. JDAL's answer to Refusal No. 29, which was q. 161 on Ms. Lee's examination, was as follows:

UNDERTAKING to advise whether Mr. Sweeney's departure was in any way shape or form the result of any conduct in relation to Mr. Hemming. (Refusal 29).

ANSWER: Sweeney's termination of employment was due to him engaging in a pattern of gross misconduct in the workplace which included bullying, harassment, discrimination, threats of physical violence, and other inappropriate behaviour. This included threatening violence against Hemming after Hemming's termination. Sweeney was not terminated for his conduct with respect to the termination of Hemming.

6. As such, JDAL has already given evidence on the reasons for Mr. Sweeney's termination.

(b) Mr. Hemming first learned of the alleged "text message" in the summer of 2018

7. Attached as Exhibit 5 is a CBC article entitled "Toronto man "terrified' after learning ex- employer didn't disclose alleged death threat text against him," published on August 21, 2018. The article refers to a text message, which is the same "text message" referred to in various questions posed of Mr. Sweeney on examination for discovery and which form the basis of refusals which the plaintiff is now seeking to compel Mr. Sweeney to answer. The CBC article also confirms:

(a) the text message was allegedly sent two years prior to the article, i.e. in 2016;

(b) it was sent "sometime after Hemming was let go in the summer of 2016" and that "Hemming had already been fired when the alleged text was sent"; and

(c) Hemming learned of the text message "a month ago" at the time of the article's writing, i.e. sometime in July 2018.

8. Mr. Hemming's statement of claim was issued September 29, 2016. It has never been amended. Mr. Hemming seeks damages for the manner of his dismissal, which he defines as "Bad Faith Conduct" in the statement of claim. The allegations in support of those damages are at paragraph 29 of the statement of claim. They do not include the text message.

9. Mr. Hemming seeks damages for the intentional infliction of emotional distress at paragraph 30 of the statement of claim. Those allegations do not include the text message.”

The “Text Message”

[32] The “Text Message” referred to in the Hostrawser Affidavit excerpt above, but not in the Plourde Affidavit, is an apparent text message that came to light during a wrongful dismissal Action apparently brought by Sweeney against JDAL and Yellow Pages Media, arising from his own termination.

[33] The actual text message is not in evidence before me, but the Hostrawser Affidavit, filed by counsel for Sweeney, contains a CBC story that purports to quote the Text Message.

[34] The Plaintiff refers to it in the Sweeney Examination as “paragraph 9(b) of the Statement of Defence of JDAL in Sweeney’s Action against JDAL and Yellow Pages Media CV-18-592168”. The Plaintiff asked questions relating to the Text Message which were refused by the Respondents, and those refusals are an issue on this Motion.

[35] The Statement of Defence of JDAL to Sweeney’s Action referred to above was put into evidence on this Motion as Exhibit “N” to the Plourde Affidavit, and is a document provided by the Respondents to the Plaintiff, appended to the response to undertakings and refusals provided by the Respondents for the Discovery, commencing at page 293 of the Plaintiff’s Motion Record.

[36] To provide the full context for the argument on this Motion relating to the relevance of the “Text Message”, discovered as a result of the filing of the Statement of Defence by JDAL in Sweeney’s Action (also a defendant in this Action) I have reproduced the full section of this Statement of Defence dealing of the with Sweeney’s alleged conduct from that JDAL Statement of Defence referred to by the Plaintiff on this Motion. These are, on the evidence before me, unproven allegations against Sweeney by JDAL. That section reads:

“8. In September 2016, allegations of serious misconduct were made against the Plaintiff by JDAL's Vice President, Sales (the "VP Sales"), who had commenced employment in May 2016. Following receipt of these allegations, JDAL commenced an investigation (the "Investigation"), which included engaging Robinson Heeney LLP to conduct an independent investigation into the allegations made by the VP Sales and other allegations that were brought forward. The Investigation included numerous interviews with JDAL employees, and a review of written records.

9. The findings of the Investigation establish that the Plaintiff had engaged in a pattern of gross misconduct in the workplace, which included bullying, harassment, discrimination, threats of physical violence, and other inappropriate behavior. Particular examples of the Plaintiff's misconduct include the following:

(a) Repeated instances of abusive and demeaning language directed at JDAL employees. Examples include:

(i) Yelling angrily at the VP Sales in a telephone call held on or about June 30, 2016, with comments such as "You call yourself a VP? You have no credibility. You are a piece of shit."

(ii) Yelling angrily at one of JDAL's senior account executives on a telephone call among the entire U.S. sales teams in a manner that was described as "flipping out," yelling comments such as "Do your fucking job. This is what I pay you for."

(iii) On numerous occasions, referring to JDAL employees in a demeaning manner as "zeros," "donuts," "bagels," "idiots" and "retarded."

(iv) Yelling angrily at his executive assistant after an airline made a booking error, in a manner described as "he was yelling like you can't believe. I mean he went crazy. He hung up a couple of times."

(v) On September 17, 2016, phoning the VP Sales at her home on a Saturday evening, and yelling angrily in a manner she described as a "scream fest," which her children were able to hear, using words to the effect of "you are a fucking loser" and "learn to do your fucking job," horrifying the children and causing the VP Sales to cry.

(b) Threatening violence against an employee whose employment had recently been terminated by the Plaintiff, with the following text sent to the VP Sales in the summer of 2016:

Ben has no idea how mean I am. I will literally give back every dollar just so he does not get a penny from him. That sound he hears in the night downstairs when he is sleeping - is me. That footstep behind him in the alley at night - it's me. I will put an axe so far into the little shits (sic) head they will have to bury him with it. Only those with the devil inside of them know the depths to which I will go. It is very dark.

(c) With respect to employee terminations, advising the VP Sales as follows in another text message sent to her in the summer of 2016:

... I got Darby the blade now jon (sic). Next up - Doug Clarke. #gameofthrones

(d) In another instance, in an email addressed to a JDAL employee on February 19, 2016, the Plaintiff wrote:

Last - reach down in to those pants of your (sic) and grab your balls. Hold them for a second ... Are you fucked? ... I am annoyed at this shit because I am tired of feeling disrespected on behalf of you and the team for shit money ...

(e) Organizing a business trip in September 2016, which the Plaintiff referred to as a "gangster trip," that only men were allowed to attend, with the exception of the VP Sales because, the Plaintiff claimed, she could "drink everyone under the table." The Plaintiff drank excessively on this trip, and encouraged other JDAL employees to do so as well.

(f) Organizing workplace parties, which included JDAL clients, at which the Plaintiff openly permitted drug use, jeopardizing the reputation of JDAL with its clients and in the industry generally.

10. Numerous JDAL employees resigned from JDAL due to the atmosphere created by the Plaintiff's misconduct, and JDAL experienced an unacceptable high staff turnover rate. Being verbally abused by the Plaintiff had become known among JDAL's employees as "being Sweeney'd".

[37] As noted above from the Hostrawser Affidavit filed on behalf of the Respondents on this Motion, questions were posed to the JDAL representative during the examination for Discovery of JDAL regarding the causes of the termination by JDAL of Sweeney, and apparently one reason was the sending of this text message, apparently after Hemming’s termination by Sweeney. Questions were also asked of Sweeney regarding this “Text Message” during the Discovery which were refused, and those refusals are being dealt with on this Motion.

[38] As noted above from the JDAL Statement of Defence, this Text Message apparently reads:

"Ben has no idea how mean I am. I will literally give back every dollar just so he does not get a penny from him. That sound he hears in the night downstairs when he is sleeping - is me. That footstep behind him in the alley at night - it's me. I will put an axe so far into the little shits head they will have to bury him with it. Only those with the devil inside of them know the depths to which I will go. It is very dark."

(the “Text Message”)

II) Issues on this Motion

[39] Commendably the Parties reduced the questions initially sought to be dealt with on this Motion and have grouped the Questions into three groups relating to a particular issue as set out in the Chart that I have attached at Schedule A to these reasons, along with my rulings. These issues are:

Issue #1: Questions relating to termination of Hemming allegedly raising issues regarding Sweeney’s alleged instructions to advise clients that inventory was being purchased through the Proprietary DMS Swarm system, but instead was being purchased through Google’s DSP, and other issues allegedly raised by Hemming regarding customer transparency (the “Whistleblower Issue”)

Issue #2: Questions relating to the Text Message (the “Text Message Issue”);

Issue #3 Question relating to whether Hemming’s termination related to underpayment of commissions and amounts owing to Hemmings (the “Commission Issue”).

[40] In each case, the primary basis for the refusals given for all three issues is that the questions were not relevant to the issues raised in the Statement of Claim, or that the answer was not in the direct knowledge of Sweeney.

III) Law and Analysis

[41] The Court has considered all materials and arguments raised by all parties on this Motion. Any failure by the Court to refer to specific arguments and materials raised does not reflect that the Court has not considered those arguments. Where quotations are underlined in these reasons, that emphasis has been added by me.

[42] Rule 30.02 sets out rules regarding the discovery of documents:

Rule 30.02 Disclosure - (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

[43] Under Rule 31.06:

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.

[44] Rule 34.15 states:

34.15 (1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that he or she is required to produce or to comply with an order under rule 34.14, the court may,

(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer;

(b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence;

(c) strike out all or part of the person’s evidence, including any affidavit made by the person; and

(d) make such other order as is just.

(2) Where a person does not comply with an order under rule 34.14 or subrule (1), a judge may make a contempt order against the person.

[45] Hemming did not file a factum on this Motion. The Respondents did file a factum but it did not set out the basic tests for scope of examination at an Examination for Discovery.

[46] When questioned by me, both counsel agreed that the general rules set out in the decision of Perrell, J. in Ontario v. Rothmans Inc., 2011 ONSC 3685 (S.C.J.) (“Rothmans”) correctly summarize the tests for proper scope of questioning on an examination for discovery. The verbatim wording of paragraph 129 of the Rothmans decision reads:

“[129] The case law has developed the following principles about the scope of the questioning on an examination for discovery:

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings: Playfair v. Cormack (1913), 1913 CanLII 599 (ON SC), 4 O.W.N. 817 (H.C.J.).

• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted. See Cominco Ltd. v. Westinghouse Can. Ltd. (1979), 1979 CanLII 489 (BC CA), 11 B.C.L.R. 142 (C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 1981 CanLII 723 (BC SC), 26 C.P.C. 13 (B.C.S.C.).

• Under the former case law, where the rules provided for questions “relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy: Kay v. Posluns (1989), 1989 CanLII 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas Corp. (1995), 1995 CanLII 7147 (ON SC), 22 O.R. (3d) 140 (Master), aff’d (1995), 1995 CanLII 7189 (ON SC), 23 O.R. (3d) 156 (Gen. Div.). The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” which suggests a modest narrowing of the scope of examinations for discovery.

• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 1921 CanLII 444 (ON SC), 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119 per Justice Middleton (“Discovery is intended to be an engine to be prudently used for the extraction of truth, but it must not be made an instrument of torture …”); Kay v. Posluns (1989), 1989 CanLII 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 26 O.R. (3d) 39 (C.A.) at p. 48 (“The discovery process must also be kept within reasonable bounds.”); 671122 Ontario Ltd. v. Canadian Tire Corp., [1996] O.J. No. 2539 (Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269 (S.C.J.). The court has the power to restrict an examination for discovery that is onerous or abusive: Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 (Master).

• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.); Rubinoff v. Newton, 1966 CanLII 198 (ON SC), [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns (1989), 1989 CanLII 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.).

• The witness on an examination for discovery may be questioned about the party’s position on questions of law: Six Nations of the Grand River Indian Band v. Canada (Attorney General) (2000), 2000 CanLII 26988 (ON SCDC), 48 O.R. (3d) 377 (S.C.J.).”

[47] To be relevant, the evidence must increase or decrease the probability of the truth of the facts in issue “as a matter of common sense and human experience.” Relevance is about the tendency to support inferences: “[t]o be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of the fact in issue.”: R. v. Arp., 1998 CanLII 769 (SCC), [1998] 3 SCR 339 at para 38.

[48] Cameron, J. in Inco v. McGrath 2005 CarswellOnt 2651 states at para. 27:

“The court’s role on a refusals motion is to rule on the propriety of questions which were asked and refused. To the extent that this is a screening function, it is a wide screen. Any proper question which may lead to evidence that could legitimately influence the judge hearing the motion should be allowed. To exclude potentially relevant evidence by too narrow a definition of relevance is to usurp the function of the motions judge.”

[49] On the issues of relevance and proportionality Blais v. Toronto Area Transit Operating Authority [2011] OJ No 1333 (Ont SCJ) states the approach to be used in determining whether a party ought to be compelled to answer a question asked at an examination for discovery that he or she argues is irrelevant requires a two-step analysis:

1. Is the question relevant as defined by the pleadings?

and

2. Even if the question is relevant, should the court compel the party to answer the question in light of the principle of proportionality contained in the Rules by considering the following factors in Rule 29.2.03(1):

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.

[50] Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917 (Ont. S.C.J.) (“CIBC v. D&T”) stands for the principal that the relevance of questions on discovery is determined by a review of the pleadings and that it is the pleadings that define the boundaries of what constitutes a relevant question asked at an examination for discovery, such that the questions must have probative value and adequately contribute to the determination of the truth or falsity of a material fact.

[51] Similar reasoning can be found in Sycor Technology Incorporated v. Kiaer, 2012 ONSC 5285 (“Sycor”) where Justice Morawetz (as the then was) stated that:

“Relevance is determined by reference to the pleadings. A document is “relevant” if it is logically connected to and tending to prove or disprove a matter in issue.”

a) Issue #1: the “Whistleblower Issue”:

[52] The Position of the Respondents on this first issue, as set out in Schedule A to their Factum are as follows. Given the specificity of the argument made by the Respondents, as to the relevance of the specific wording of the Statement of Claim, I have reproduced this argument in full with respect to this Issue #1:

“The questions below are irrelevant and were properly refused for the following reasons:

1. Questions 246, 248, 250, 252, 254, 256 and 257 relate to an apparent – but unpleaded – allegation that Mr. Hemming was terminated in some form of “reprisal” for allegedly raising an issue about Mr. Sweeney encouraging employees to tell clients that their inventory was being purchased through DSP Swarm. Mr. Hemming has pleaded that he was terminated for requesting parental leave. His pleading does not refer to being terminated as an alleged “reprisal” for raising issues at JDAL. This information would have been within his knowledge when he issued the claim in 2016. It was never added to the claim and does not form the basis of any allegation against JDAL or Mr. Sweeney.

2. Employees are protected from “reprisal” under Ontario’s Human Rights Code (“Code”). However, the Code protects against reprisal for exercising, instituting proceedings about, or refusing to infringe a protected right under the Code (s. 8). The Code has nothing whatsoever to do with non-Code related “reprisals.” Therefore, Mr. Beeho’s questions about whether Mr. Hemming was terminated in a “reprisal” for raising non-Code related issues cannot possibly form the basis of a violation of Mr. Hemmings rights under the Code or of damages sought or awarded for any such violation.

3. Paragraph 29 of the Statement of Claim (“Claim”) defines “Bad Faith Conduct” to include three specific acts. None of those acts are an alleged “reprisal” against Mr. Hemming. The “Bad Faith Conduct” is the sole basis upon which Mr. Hemming seeks aggravated and punitive damages.

4. JDAL is alleged to have committed the “Bad Faith Conduct,” nor Mr. Sweeney or Oriole Media Corp. Mr. Hemming seeks aggravated and punitive damages as against JDAL alone.

5. The boilerplate language at paragraph 17 of Mr. Sweeney’s Statement of Defence to the main action (“Defence”) is not a license for Mr. Beeho to explore otherwise irrelevant issues in examination for discovery. The relevant issues, including the alleged reason(s) for Mr. Hemming’s termination, are framed by what is expressly stated in the pleadings.

6. Regarding the reasons for Mr. Sweeney’s dismissal by JDAL – these are within JDAL’s knowledge but could not possibly be within Mr. Sweeney’s knowledge. Moreover, JDAL has already answered this very question. JDAL’s evidence is that Mr. Sweeney “was not terminated for his conduct with respect to the termination of Hemming.” This is the best evidence of the reasons behind JDAL’s termination of Mr. Sweeney.

If Mr. Hemming honestly believed he was terminated, in whole or in part, for raising issues with Mr. Sweeney’s request of employees relating to use of DSP Swarm vs. Google’s DSP, he could have pleaded that as an additional alleged basis for his wrongful dismissal. He has not done so.

In addition, Mr. Hemming has evidence from JDAL on the reasons behind the company’s termination of Mr. Sweeney. It is not an appropriate question to pose of Mr. Sweeney, particularly in circumstances where Mr. Hemming himself stated on his examination for discovery that, five years into this litigation, “I have still not got a truthful, accurate reason for me being let go,” and expressed doubt that he ever would know why he was fired. Mr. Sweeney, who was also fired and who also commenced a wrongful dismissal claim against JDAL, is in the same opaque boat.”

[53] As stated in Blais and Rothmans the pleadings define the boundaries of what constitutes a relevant question, and specifically as stated in Rothmans “relevant to any matter in issue,” as defined in the pleadings and may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded.

[54] I disagree with counsel for the Respondents that all of the Plaintiff’s questions under Issue #1 are not relevant to determination of the issues raised in the Pleadings. For the reasons set out below, I find certain of those questions to be directly relevant.

[55] As noted by Chief Justice Morawetz in Sycor, something “…is “relevant” if it is logically connected to and tending to prove or disprove a matter in issue.” The construction in Rothmans is “…relevant to the issues as defined by the pleadings” and “…relevant to any matter in issue”.

[56] In the Respondent’s Factum excerpt above, and in argument, counsel for the Respondent takes the very narrow view that as the specific wording of the Plaintiff’s Statement of Claim for Issue #1 (as summarized above and in the Refusals Chart) contains no specific allegation in the STATEMENT OF CLAIM regarding to a “reprisal”, that the questions are not relevant. But the test is “…relevant to the issues as defined by the PLEADINGS” and “…logically connected to and tending to prove or disprove a matter in issue”.

[57] The Plaintiff is correct that there is no specific statement in the Statement of Claim that relates to the allegations that Sweeney was telling clients and sales reps to tell clients that the customers’ inventory was being purchased through DSP Swarm, but DSP Swarm wasn’t working, and, whether the inventory was actually being purchased through Google’s DSP.

[58] Counsel patiently explained to me that the technical difference was whether the customers were being told, were expecting and were paying Oriole and/or JDAL for a premium service for placing their advertising on websites through a Demand Side Platform (DSP) (the DSP Swarm) that allows buyers of digital advertising inventory to manage multiple ad exchange and data exchange accounts through one interface, making bidding for on-line advertising placement for banner ads and pricing for data more effective, and were instead getting a less effective service (the Google DSP) but still paying a premium price.

[59] One of the fundamental issues in this Action is the allegation by the Plaintiff that he was terminated for reasons other than those stated by the Defendants namely:

“26. Mr. Hemming pleads that JDAL's decision to terminate his employment was based entirely or in part upon his impending parental leave.”

[60] And that JDAL acted in “Bad faith” in relation to his termination, namely in paragraph 29:

(a) JDAL terminated Mr. Hemming's employment in a callous and bad faith manner, at a vulnerable point in his life (i.e. approximately two (2) months prior to the arrival of his first child). In that regard, news of his dismissal was delivered by Mr. Sweeney, by way of the haughty and insensitive pronouncement to Mr. Hemming that "You're out."

(b) Having failed to provide Mr. Hemming with any relevant details regarding the Transaction, JDAL attempted to avoid and deny Mr. Hemming's legal entitlements by purporting to rely (i.e. in the dismissal letter that was presented to him on the Termination Date, and also in subsequent correspondence) upon terms of an employment agreement that it knew or ought to have known was no longer of any force and effect.

“(c) Following the Termination Date, JDAL purported to justify Mr. Hemming's dismissal with false and disparaging allegations to the effect that he had had "a negative impact" on his colleagues and that he had "caused commotion" within the sales team. In the same vein, JDAL also attempted to intimidate and dissuade Mr. Hemming from pursuing his legal remedies, by falsely accusing him of "stirring up trouble" with his former co-workers after his dismissal.”

[61] The specific details of this alleged conduct by JDAL, after the termination date alleging that Hemming had "a negative impact" on his colleagues and that he had "caused commotion" within the sales team and “stirring up trouble” are not stated in the Statement of Claim, but the allegation is there in the Statement of Claim. I note that the first claim of Bad Faith Conduct by JDAL specifically refers to the conduct of Sweeney, the CEO of JDAL at the time, and his specific conduct in relation to the termination of Hemming.

[62] As I noted, ALL of the Pleadings determine the issues of relevance to the Action, not just the Statement of Claim.

[63] In the Statement of Defence Oriole, Oriole makes a general “boilerplate” denial of all of the allegations made by Hemming, but makes no specific denial of these particular allegations in paragraphs 26 and paragraphs 29-31 of the Statement of Claim.

[64] In the Statement of Defence of JDAL there is a general “boilerplate” denial of all of the allegations made by Hemming, as well as the following specific paragraphs relating to the termination of Hemming by JDAL, while Sweeney was CEO:

“27. Hemming was terminated without cause by JDAL on June 30, 2016. Contrary to the allegation in Paragraph 26 of the Claim, Hemming's termination without cause was part of the normal business activities of JDAL. As a result of the Purchase, JDAL had to make an assessment of the financial viability of the Juice Mobile business. As part of that assessment JDAL had to assess all of its employees and its needs. Accordingly, between April 4. 2016 and September 29, 2016. JDAL has terminated eleven employees. Hemming was one of these employees; and he was one of three employees terminated without cause on June 30. 2016. These terminated employees have been both female and male.

28. JDAL denies that it has violated any of Hemming's rights to equal treatment in employment without discrimination on the basis of family status. JDAL denies that Hemming is entitled to any damages as alleged in Paragraph 28 of the Claim.

29. As set out above, JDAL denies that Hemming is entitled to any damages for unpaid wages or human rights damages.

30. JDAL denies that Hemming is entitled to any aggravated or punitive damages as alleged in Paragraphs 24 - 30 of the Claim.

31. At all times in dealing with Hemming and particularly regarding his termination, IDAL acted in good faith. At no time did JDAL do anything to cause Hemming mental distress. JDAL denies that Hemming is entitled to any damages for intentional infliction of emotional distress.”

[65] However, in the Third Party Claim JDAL pleads the following with respect to the conduct of Sweeney:

“10. As the Chief Executive Officer of JDAL. Sweeney was the senior managerial employee and he held himself out to be capable of performing the duties and responsibilities of his employment with the necessary degree of skill and competence. If he misused his managerial position to engage in direct and intentional wrongdoing with respect to Hemming's termination, then Sweeney is liable to indemnify JDAL. for any amounts to which JDAL is found vicariously liable for Sweeney's actions.”

[66] Sweeney in the Sweeney Defence states on this issue:

14. Contrary to the allegations in the Statement of Claim, Sweeney did not, at any time, act contrary to the Ontario Human Rights Code, R.S.O. 1990, c. 11.19, or in any manner giving rise to intentional infliction of emotional distress or in bad faith with respect to Hemming's employment and/or his termination.

15. Hemming was not terminated as a result of his decision to take parental leave or for any other reason contrary to law. The fact is that, following the Transaction, JDAL decided to terminate Hemming without cause. JDAL also terminated two other employees without cause on the same day and paid those employees severance in lieu of notice. Only Hemming decided to commence litigation against IDAL and Oriole. Sweeney repeats and relies upon the allegations contained in paragraph 27 of JDAL's Statement of Defence.

16. At all material times, Sweeney acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL, including in connection with Hemming's without cause termination.

[67] In the Third Party Defence Sweeney states:

15. Contrary to the allegations in the Statement of Claim and in the Third Party Claim, Sweeney did not, at any time, act contrary to the Ontario Human Rights Code, R.S.O. 1990, c. 11.19, or in any manner giving rise to intentional infliction of emotional distress or in bad faith with respect to Hemming's employment and/or his termination.

16. Hemming was not terminated as a result of his decision to take parental leave or for any other reason contrary to law. The fact is that, following the Transaction, JDAL decided to terminate Hemming without cause. JDAL also terminated two other employees without cause on the same day and paid those employees severance in lieu of notice. Only Hemming decided to commence litigation against JDAL and Oriole.

17. At all material times, Sweeney acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL. He did not act outside the scope of his authority or employment responsibilities in connection with the matters alleged in the Third Party Claim, including in respect of Hemming's termination which Sweeney carried out in a reasonable manner, consistent with his obligations and responsibilities as an officer of JDAL.

18. Sweeney is not personally liable or responsible for the claims advanced either in the Main Action or in Third Party Claim. Sweeney denies he is liable to indemnify JDAL and hold it harmless from any of the claims advanced by Hemming in the Main Action, or for the costs of defending the Main Action on a substantial or partial indemnity basis.

[68] So, the “matters in issue,” (the “Matters In Issue”) with respect to the questions as the defined in the above paragraphs of the Pleadings collectively are:

1. whether JDAL purported to justify Hemming's dismissal with allegations to the effect that he had had "a negative impact" on his colleagues, had "caused commotion" within the sales team as alleged by the Plaintiff;

2. whether Hemming's termination without cause was part of the “normal business activities of JDAL” as alleged by JDAL;

3. whether Sweeney terminated Hemmings employment in a “…callous and bad faith manner”

4. whether JDAL at all times dealt with Hemming, and particularly regarding his termination, in good faith and whether JDAL did anything to cause Hemming mental distress, as plead in the JDAL Defence;

5. whether Sweeney misused his managerial position to engage in direct and intentional wrongdoing with respect to Hemming's termination as plead by JDAL in the Third Party Claim;.

6. whether Sweeney acted in any manner that gave rise to intentional infliction of emotional distress or in bad faith with respect to Hemming's employment and/or his termination, as plead by Sweeney in the Sweeney Defence.

7. whether Hemming was terminated as a result of his decision to take parental leave “or for any other reason contrary to law” as plead in the Sweeney Defence

8. whether Sweeney acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL, including in connection with Hemming's termination, as plead in the Sweeney Defence

9. whether Sweeney (as plead in the Third Party Defence):

i) acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL

ii) acted within the scope of his authority or employment responsibilities in connection with Hemming's termination

iii) whether the termination was carried out in a reasonable manner, consistent with Sweeney’s obligations and responsibilities as an officer of JDAL.

[69] Sweeney in the same Discovery, gave the following answers with respect to the reasons why Hemming was terminated:

184 Q. Okay, so, why did Veronica want to let him go?

A. We had had situations where people who had been at the organization for quite some time were leaving the sales organization, and in the conversations with them leaving the organization, they had pointed to Ben as one of the main reasons that they were leaving. There was countless examples of Ben ... of the individual being insubordinate as it related to other members of the management team, including Jake Denny, Veronica, and others. And so it was felt that in conjunction with the two other people at the time, needed to be removed from the organization.

189 Q. Okay. So, again, let's unpack this. You said people were leaving, and identified issues with Mr. Hemming, essentially, on their way out the door. So, who were these people, and what is your best recollection of the issues that they identified?

A. Two individuals, Jeremy Ienco was one, Adam Jamieson was another, Andrea Topping was another. She hadn't left at that time, but the other two had. When those two left, the question was posed to them, as you do with any person that leaves the organization, "Why are you leaving?" Both had explained that Ben was a problem, and that he was angry at everybody, and they just didn't like the cultural environment that was being created.

192. Okay. Well, then, tell me more about the feedback that you were getting from the rest of the management team.

A. Well, I think they believed that Ben was responsible for driving division in the individual company, and that he was the catalyst for a lot of the negativity that was being driven in the company, and the cause for a number of individuals that were actually leaving the company.

288. Q. Well, if I put it to you that we are going to be calling evidence that you told everyone on this meeting that Mr. Hemming had been let go because he was negative. How do you respond to that?

A. I don't' recall ever saying that.

289. Q. You have told me, though, that in your assessment and your explanation for the decision to let Ben go, it was because of what you referred to as elements of negativity, correct?

A. Insubordination, negativity, and undermining of individual management were the core reasons why that particular individual, in conjunction with, was one of the one of three people that were let go on the same day.

290. And not because he raised concerns about the company's sales practices?

MR. BROUSSEAU: That was an under advisement, previously.”

[70] In determining the specific questions under this issue #1, those prior answers given by Sweeney at the Discovery make relevant the specific issues of “Insubordination, negativity, and undermining of individual management that Sweeney testified were the core reasons” for the termination of Hemming, particularly in the context of the very broad “boilerplate” defences filed by Oriole, and JDAL and the specific defences of Sweeney to the Main Action and the Third Party claim.

[71] Questions 246, 248, 250, 252, 254, 256 and 257 refused, are summarized as follows in the Chart:

Q. 246 To advise whether Mr. Sweeney was telling clients and telling sales reps to tell clients that the customers’ inventory was being purchased through DSP Swarm, but Swarm wasn’t working; and, further to that, was it or was it not the case the inventory was actually being purchased through Google’s DSP?.

Q. 248 Was it or was it not the case that you told clients that inventory was being purchased through the proprietary DSP Swarm, and that other representatives also told that to clients at your instruction?

Q. 250 Was it or was it not the case that Mr. Hemming was concerned about the aforesaid (i.e. the matters referred to in Q.246 and Q.248) and presented his concern to you?

Q. 252 Did the decision to terminate Mr. Hemming’s employment have anything to do with his raising the aforesaid (i.e. the matters referred to in Q.246 and Q.248) or other concerns regarding transparency and honesty with the company’s clients?

Q. 254 Were instructions provided by you to sales employees to promise and sell a certain quality of inventory, then to purchase and provide inventory of a lesser quality in order to increase the company’s margins? Did that happen?

Q. 256 Did Mr. Hemming come to you with his concerns that the aforesaid (i.e. the matter referred to in Q.254) was happening?

Q.257 Did the fact that Mr. Hemming came to you with those concerns regarding the aforesaid (i.e. the matter referred to in Q.254) in any way motivate the company’s decision to part ways with him?

[72] Following the wording of CJ Morawetz in Sycor, based on the analysis above, I find that these questions are relevant as they are:

“…logically connected to and tending to prove or disprove [the] matter[s] in issue.”,

and I agree with the Supreme Court of Canada in in R. v. Arp that the answers to these questions would tend to:

“…increase or diminish the probability of the existence of the fact in issue.”

namely whether:

1. Hemming raising the issues with the alleged instructions on the part of Sweeney to Hemming and sales reps to clients that their inventory was being purchased through DSP Swarm, although Swarm wasn’t working, and

2. that instead inventory was actually being purchased through Google’s DSP,

are possible examples of the conduct on the part of Hemming that Sweeney characterized as “Insubordination, negativity, and undermining of individual management” that he testified were the “core reasons” for Hemming's dismissal, and that JDAL had alleged that Hemming had had "a negative impact" on his colleagues, and had "caused commotion" within the sales team, as alleged by the Plaintiff in paragraph 29(c) of the Statement of Claim as one of the basis for Hemmings claim for damages for Bad Faith Conduct, as well as being relevant to the defences raised by Sweeney, JDAL and Oriole in the Pleadings, as summarized above.

[73] On the test distilled from of Rothmans, Blais and CIBC v. D&T I find that the information that may be contained in the answers to these questions has “…probative value and adequately contribute[s] to the determination of the truth or falsity of a material fact...”, namely whether these issues allegedly raised by Hemming with Sweeney were examples of the “Insubordination, negativity, and undermining of individual management” that were the “core reasons” for Hemming’s termination by JDAL.

[74] I find that Questions 246, 248, 250, 252, 254, 256 and 257 are relevant to the matters in issue raised in the Pleadings and are to be answered.

[75] Having found that questions 246, 248, 250, 252, 254, 256 and 257 being requested by the Plaintiff relate to the “Matters in Issue” in the Pleadings, these questions cannot be a “fishing expedition” prohibited by the test in Rothmans.

[76] Having determined the relevance of the Plaintiff’s request, a determination must now be made on the proportionality of the request by the Plaintiff.

[77] R.29.2.03 states:

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 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.

Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

[78] I do not find that ordering these questions to be answered violates the proportionality principle or R.29.2.03, as requiring Sweeney to answer these questions would not cause him undue prejudice, would not unduly interfere with the orderly progress of the action, and the information is not readily available to the party requesting it from another source.

[79] With respect to the remaining questions under Issue #1:

Q. 311 Was your dismissal related to any actual or alleged violation of the Ontario Human Rights Code in relation to Mr. Hemming or others?

Q. 312 Was your dismissal related to any actual or alleged harassment or other inappropriate behaviour related to Mr. Hemming or others?

Under the provisions of R.29.2.03(1)(e) that information is “readily available to the party requesting it from another source”, namely the answer to the undertaking provided by JDAL at the Lee Examination which states:

“UNDERTAKING to advise whether Mr. Sweeney's departure was in any way shape or form the result of any conduct in relation to Mr. Hemming. (Refusal 29).

ANSWER: Sweeney's termination of employment was due to him engaging in a pattern of gross misconduct in the workplace which included bullying, harassment, discrimination, threats of physical violence, and other inappropriate behaviour. This included threatening violence against Hemming after Hemming's termination. Sweeney was not terminated for his conduct with respect to the termination of Hemming.”

[80] Accordingly, questions Q.311 and Q.312 do NOT have to be answered by Sweeney.

b) Issue #2: the “Text Message” issue

[81] Having belabored the specific relevant quotations from the pleadings I will not repeat them again here.

[82] The questions under this issue are summarized as follows from the Refusals Chart:

Q. 325 Did you or did you not send that text (i.e. the text message that is referred to in paragraph 9(b) of the Statement of Defence in Court File No. CV-18-592168) to Sandra MacKechnie on or about July 2016?

Q.332 You threatened Mr. Hemming’s life in this message, didn’t you?

Q.334 Why did you send the text message to Ms. MacKechnie?

Q.335-336 What prompted you to send it? Anything in particular?

[83] The position of the Respondents on this issue #2 in their factum at Schedule A reads as follows:

“The questions below are irrelevant and were properly refused for the following reasons:

1. The Claim defines “Bad Faith Conduct” as being JDAL’s conduct, and limits it to the three specific issues raised at paragraphs 29(a)-(c) of the Claim. These paragraphs do not include the alleged text message. Mr. Hemming relies on the “Bad Faith Conduct” to seek:

(a) aggravated and punitive damages from JDAL (para. 30 of the Claim), and

(b) damages for the intentional infliction of emotional distress from JDAL (para. 30 of the Claim). Neither of these paragraphs renders the alleged text message relevant to damages sought against Oriole (Mr. Hemming does not seek any damages directly from Mr. Sweeney).

2. Mr. Hemming learned of the text message in 2018. It was not within his knowledge when he issued the Claim, and there is therefore no relationship between the Claim and the text.

3. As with Issue #1, Mr. Sweeney’s boilerplate language at para. 17 of the Defence is not a license to explore facts or issues which are not otherwise logically connected to the Claim.”

[84] As with Issue #1, in the Respondents’ Factum excerpt above, and in argument, counsel for the Respondents takes the very narrow view that as specific wording of the paragraphs of the Plaintiff’s Statement of Claim for Issue #2 as summarized above, that because there is no specific allegation made in the STATEMENT OF CLAIM to the Text Message that the questions are not relevant. As noted the test is “…relevant to the issues as defined by the PLEADINGS” and “…logically connected to and tending to prove or disprove a matter in issue”.

[85] In the Statement of Claim the Plaintiff states at paragraph “JDAL terminated Mr. Hemming's employment in a callous and bad faith manner” as one of the basis for the Bad Faith Conduct.

[86] In response Sweeney pleads in the Sweeney Defence:

“17. At all material times, Sweeney acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL, including in connection with Hemming's without cause termination.”

And in the Third Party Defence:

18. At all material times, Sweeney acted reasonably and in accordance with his obligations and duties as an employee and officer of JDAL. He did not act outside the scope of his authority or employment responsibilities in connection with the matters alleged in the Third Party Claim, including in respect of Hemming's termination which Sweeney carried out in a reasonable manner, consistent with his obligations and responsibilities as an officer of JDAL.

[87] JDAL in its Defence states:

“(para. 27) Hemming's termination without cause was part of the normal business activities of JDAL.

33. At all times in dealing with Hemming and particularly regarding his termination, JDAL acted in good faith.”

[88] If the CEO of JDAL, shortly after personally terminating Hemming, who he stated in his discovery evidence had engaged in “Insubordination, negativity, and undermining of individual management” which he testified were the “core reasons” for Hemming’s termination, had allegedly sent a text message to another senior executive of JDAL stating that:

“Ben has no idea how mean I am.

I will literally give back every dollar just so he does not get a penny from him.

That sound he hears in the night downstairs when he is sleeping - is me.

That footstep behind him in the alley at night - it's me.

I will put an axe so far into the little shits head they will have to bury him with it.

Only those with the devil inside of them know the depths to which I will go. It is very dark”

then in the context of the “core issues” of this Claim by the Plaintiff that his termination was for reasons other than as pleaded by JDAL, Oriole and Sweeney as “part of the normal business activities of JDAL”, I find that the circumstances and motivations surrounding the sending of such an alleged message by Sweeney, as then-CEO of JDAL, may be relevant evidence that “JDAL terminated Mr. Hemming's employment in a callous and bad faith manner”, and make the Text Message “…logically connected to and tending to prove or disprove [the] matter[s] in issue” as per Sycor.

[89] I find that Questions 325, 334 and 335-336 are relevant to the matters in issue raised in the Pleadings and are to be answered. Answering these questions does not violate the principle of proportionality or the provisions of R.29.2.03.

[90] With respect to question 332, the Text Message speaks for itself, and the Respondents are correct that the question posed requests a legal conclusion related to whether the Text Message constitutes an actual threat. Question 332 does not have to be answered.

c) Issue #3 the “Commission Issue”

[91] The questions under this issue are summarized as follows in the Refusals Chart:

Q.310 Was your termination related to any actual or alleged underpayment of commissions to Mr. Hemming and any other sales staff?

Q.340 With regard to the text message that is referred to in paragraph 9(b) of the Statement of Defence in Court File No. CV-18-592168, which dollars were you prepared to “give back”, and to whom?

Q.341 You didn’t want Mr. Hemming to get even a penny, correct? Again, with regard to the text message that is referred to in paragraph 9(b) of the Statement of Defence in Court File No. CV-18-592168, what were the pennies that you didn’t want him to get?

Q.342 Mr. Hemming is owed monies by Oriole and Juice Mobile, is he not?

[92] The position of the Respondents on this issue, as stated in their factum is as follows:

“The questions below are irrelevant and were properly refused for the following reasons:

1. As with Issue #1, the Claim defines the alleged basis for Mr. Hemming’s termination. It does not refer to actual or alleged underpayment of commissions to Mr. Hemming or others.

2. As with Issue #1, JDAL gave evidence on the reasons for its termination of Mr. Sweeney. JDAL was ordered to answer, and did answer, Refusals No. 17 and 18 arising out of the examination for discovery of Paul Brousseau. Those questions were whether JDAL had undertaken a reconciliation of “outstanding payments of commissions that had in fact gone unpaid during Mr. Sweeney’s regime,” and to advise whether Mr. Sweeney’s departure was “motivated by” or “in any way a result on account of underpayment of commissions to Mr. Hemming and/or other sales staff.”

3. As with Issue #1, JDAL’s evidence on its reasons for terminating Mr. Sweeney is really the best (and only) evidence on that issue, if it is relevant at all. Mr. Hemming has that evidence.

4. Regarding question 342 – Mr. Sweeney, who was examined on behalf of Oriole Media Corp., has answered that Mr. Hemming is not owed money by Oriole Media Corp. It is not appropriate to ask him a “positional question” regarding Mr. Hemming’s entitlement (if any) to monies owed by JDAL in circumstances where JDAL has its own counsel and its representative has been examined.”

[93] With respect to Q.310, while the reasons for Sweeney’s dismissal are relevant to the matters at issue in this Action, I agree with the Respondents that the best source for the answer to why Sweeney was dismissed is JDAL and not Sweeney.

[94] As under the provisions of R.29.2.03(1)(e) that information is “readily available to the party requesting it from another source”, namely the testimony of JDAL as to why JDAL terminated Sweeney, then Sweeney does not have to answer Q.310.

[95] With respect to Q.340 and 341, both relate again to the Text Message, dealing with the monetary aspects rather than the violence aspects. As noted in under issue #2 I find that the circumstances and motivations surrounding the sending of such an alleged message by Sweeney, as CEO of JDAL, and whether those motivations as expressed in the alleged Text Message by Sweeney, as then CEO of JDAL, relating to the payment of amounts allegedly owing to Hemming are evidence that “JDAL terminated Mr. Hemming's employment in a callous and bad faith manner”, make the Text Message “…logically connected to and tending to prove or disprove [the] matter[s] in issue” as per Sycor, and therefore relevant.

[96] Q.340 and 341 shall be answered. Answering these questions does not violate the principle of proportionality or the provisions of R.29.2.03

[97] With respect to Q. 342 the actual question at the Discovery was:

“342. Q. Now, according to the text message, you didn't want him to get those pennies, evidently not because he wasn't entitled to them, but because you are "mean". Now, you tell me, Mr. Hemming is, in fact, owed monies by Oriole and Juice Mobile, is he not?

MR. BROUSSEAU: Refused.”

[98] The actual answer to this question provided in the Refusals Chart and in the answers provided by the Respondents at Exhibit “N” to the Plourde Affidavit is:

“Mr. Hemming is not owed money by Oriole Media Corp.”

[99] The Plaintiff found this answer insufficient. I find that this answer, to a relevant question, does provide an answer to the first part of Q.342. With respect to the second half of the question, “Juice Mobile” is not a legal entity, and if the question related to JDAL after the takeover of the “Juice Mobile” business, the proper entity to direct that question to is JDAL, as under R.29.2.03(1)(e) that information is “readily available to the party requesting it from another source”. No further answer by the Respondents to Q.342 is required.

IV) Summary of Order Granted

[100] The following Refusals and Under Advisements shall be answered by the Respondents within 90 days of the date of the issuance of these Reasons, and Sweeney shall re-attend, as a representative of Oriole and on his own behalf as the Third Party, at his own expense, to answer all questions reasonably arising from responses provided and from responses ordered by this Court to these questions:

Q.246, 248, 250, 252, 254, 256, 257, 325, 334, 335-336, 340, 341

[101] The following Refusals do not have to be answered by the Respondents:

Q. 310, 311, 312, 332, 342.

COSTS

[102] If the parties cannot agree on the disposition of the costs of the motion, they may make written submissions, not exceeding three pages each, the Plaintiff within 20 days and the Respondents within 40 days.

Associate Justice Ilchenko

Superior Court of Justice

July 26th, 2022

SCHEDULE “A”

Court File No. CV-16-00056147-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BENJAMIN HEMMING

Plaintiff

and

ORIOLE MEDIA CORP. and JUICE DMS ADVERTISING LIMITED

Defendants

Refusals Chart

ISSUE #1

Issue & relationship to pleadings or affidavit	Question No.	Page No.	Specific question	Answer or precise basis for refusal	Disposition by the Court
1.	246	74-75	To advise whether Mr. Sweeney was telling clients and telling sales reps to tell clients that the customers’ inventory was being purchased through DSP Swarm, but Swarm wasn’t working; and, further to that, was it or was it not the case the inventory was actually being purchased through Google’s DSP?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
2.	248	75	Was it or was it not the case that you told clients that inventory was being purchased through the proprietary DSP Swarm, and that other representatives also told that to clients at your instruction?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
3.	250	75	Was it or was it not the case that Mr. Hemming was concerned about the aforesaid (i.e. the matters referred to in Q.246 and Q.248) and presented his concern to you?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
4.	252	76	Did the decision to terminate Mr. Hemming’s employment have anything to do with his raising the aforesaid (i.e. the matters referred to in Q.246 and Q.248) or other concerns regarding transparency and honesty with the company’s clients?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
5.	254	76	Were instructions provided by you to sales employees to promise and sell a certain quality of inventory, then to purchase and provide inventory of a lesser quality in order to increase the company’s margins? Did that happen?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
6.	256	76	Did Mr. Hemming come to you with his concerns that the aforesaid (i.e. the matter referred to in Q.254) was happening?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
7.	257	77	Did the fact that Mr. Hemming came to you with those concerns regarding the aforesaid (i.e. the matter referred to in Q.254) in any way motivate the company’s decision to part ways with him?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
8.	311	91	Was your dismissal related to any actual or alleged violation of the Ontario Human Rights Code in relation to Mr. Hemming or others?	Irrelevant and not within Mr. Sweeney’s direct knowledge in any event.	Answer provided directly by JDAL in answers to undertakings, and does not need to be answered.
9.	312	91	Was your dismissal related to any actual or alleged harassment or other inappropriate behaviour related to Mr. Hemming or others?	Irrelevant and not within Mr. Sweeney’s direct knowledge in any event.	Answer provided directly by JDAL in answers to undertakings, and does not need to be answered.

ISSUE #2

Issue & relationship to pleadings or affidavit	Question No.	Page No.	Specific question	Answer or precise basis for refusal	Disposition by the Court
1.	325	97-98	Did you or did you not send that text (i.e. the text message that is referred to in paragraph 9(b) of the Statement of Defence in Court File No. CV-18-592168) to Sandra MacKechnie on or about July 2016?	Irrelevant to any issue raised, pleaded in or connected to the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
2.	332	100	You threatened Mr. Hemming’s life in this message, didn’t you?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	The Text Message speaks for itself and the question requests a legal conclusion of whether it is a threat. Question does not have to be answered.
3.	334	100	Why did you send the text message to Ms. MacKechnie?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
4.	335-336	101	What prompted you to send it? Anything in particular?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.

ISSUE #3

Issue & relationship to pleadings or affidavit	Question No.	Page No.	Specific question	Answer or precise basis for refusal	Disposition by the Court
1.	310	91	Was your termination related to any actual or alleged underpayment of commissions to Mr. Hemming and any other sales staff?	Irrelevant and not within Mr. Sweeney’s direct knowledge in any event.	Information is “readily available to the party requesting it from another source”, namely the testimony of JDAL, and does not have to be answered.
2.	340	101	With regard to the text message that is referred to in paragraph 9(b) of the Statement of Defence in Court File No. CV-18-592168, which dollars were you prepared to “give back”, and to whom?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
3.	341	102	You didn’t want Mr. Hemming to get even a penny, correct? Again, with regard to the text message that is referred to in paragraph 9(b) of the Statement of Defence in Court File No. CV-18-592168, what were the pennies that you didn’t want him to get?	Irrelevant to any issue raised and/or pleaded in the statement of claim.	Question relevant to the matters at issue raised in the Pleadings filed by all of the Parties, including the Statement of Claim, and shall be answered.
4.	342	102	Mr. Hemming is owed monies by Oriole and Juice Mobile, is he not?	Mr. Hemming is not owed money by Oriole Media Corp.	Answered with respect to Defendant Oriole. Information is “readily available to the party requesting it from another source”, namely the testimony of JDAL, and does not have to be answered.