Court File and Parties
COURT FILE NO.: CV-18-602946
MOTION HEARD: 20220816
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jan Ferguson, Plaintiff
AND:
Yorkwest Plumbing Supply Inc., Defendant
BEFORE: Associate Justice Jolley
COUNSEL: Gregory Sills, counsel for the moving party plaintiff
John Lo Faso, counsel for the responding party defendant
HEARD: 16 August 2022
REASONS FOR DECISION
[1] The plaintiff seeks an order striking the defendant’s statement of defence as a result of its refusal to attend its scheduled examination for discovery. In accordance with the notice of examination that the plaintiff served first, the defendant would examine the plaintiff and thereafter the plaintiff would examine a representative of the defendant. The defendant insisted that that the plaintiff examine the defendant first and that it examine the plaintiff only after that examination had taken place.
[2] In the unique and fact-specific circumstances of this case, the plaintiff’s motion is granted for the reasons set out below.
[3] The plaintiff was employed by the defendant from October 2015 until 6 March 2017, when the defendant terminated her employment, giving her one week’s notice. It alleges performance-related cause in its statement of defence.
[4] When the action did not settle at mediation in July 2021, the plaintiff’s lawyer took steps to arrange to examine the defendant for discovery. Defence counsel chose to ignore most of the plaintiff’s emails attempting to set up discovery dates and to confirm the appropriate representative. Having had no response from the defendant’s lawyer, on 17 September 2021, the plaintiff served a notice of examination on the defendant for 30 September 2021. Ten days after the notice was sent and three days before the scheduled examination, defence counsel wrote to advise that neither he nor his client was available.
[5] When the defendant advised counsel on September 27 that he would be out of the country until 17 October 2021, plaintiff’s counsel asked him then for dates for the month following his return so that discoveries could be scheduled. Defence counsel did not or would not respond. Having no answer, the plaintiff served her second notice of examination for 10 November 2021, giving notice by email on October 15 and serving a notice of examination on October 26. One week before the scheduled discovery, defence counsel advised that he could not attend November 10 for medical reasons. He provided two available January 2022 dates.
[6] The plaintiff agreed to the 27 January 2022 date on the condition that the defendant provide additional relevant documents prior to 1 December 2021, failing which she would serve a notice of examination for 16 December 2021. None of the plaintiff’s emails were responded to and no documents were delivered. As a result of this silence, on 6 December 2021, the plaintiff served her third notice of examination for 16 December 2021. The defendant’s representative inadvertently wrote directly to plaintiff’s counsel three days before the new examination date, asking “can we delay [the examination] further?” Defendant’s counsel did just that and advised the afternoon of 13 December 2021 that its representative was not available December 16. The defendant did not attend and the plaintiff obtained a certificate of non-attendance. Five and a half months had passed since the plaintiff first attempted to arrange for the defendant’s discovery.
[7] As a result of this conduct, the plaintiff brought the matter before Morgan, J. at a case conference on 19 January 2022. His Honour first noted that “the defendant has been delaying discoveries”. Hie endorsement went on to state that:
“Counsel both now agree that there should be an Order requiring discoveries to be completed by February 28, 2022. It is so ordered. Defendant is to start cooperating in scheduling the steps in this litigation and cease putting up roadblocks. I recommend that if there is another instance of non-attendance, Plaintiff’s counsel move to take out whatever remedy is available under the Rules of Civil Procedure. That may require a motion before an Associate Judge. At that point, the Plaintiff will need a remedy, not just [sic] new schedule set at a case conference and an admonishment directed at the Defendant." (emphasis added)
[8] That should have been a warning to the defendant that enough was enough.
[9] On 21 January 2022, the defendant proposed that discoveries take place on 28 February 2022, the last available date under the court endorsement. The plaintiff agreed and, in order to preserve its wished order of examination, sent a notice to examine the defendant starting at 2:00 on 28 February 2022, leaving the morning available for the defendant to examine the plaintiff. (While the plaintiff argued that the order was important to her, I do note that up until this point, she was prepared to examine a representative of the defendant without her own examination being conducted.) Nonetheless, this was her choice after seven months of delay.
[10] A long series of emails ensued. Plaintiff’s counsel summarized his position by letter of 26 January 2022, as follows: “2:00 is a normal time for examinations to start for the afternoon. If you need to examine Ms. Ferguson, you will have to do so at 10:00. As per the Rules, the party who serves the Notice first gets to pick the order. We have served ours first and it will be proceeding at 2:00.”
[11] The defendant objected to having to examine the plaintiff before his client was examined but felt it fair to have the roles reversed, i.e. for plaintiff’s counsel to have to examine the defendant before the plaintiff ‘s examination. While the defendant argued that his right to examine second was supported by case law, he did not provide the plaintiff with any jurisprudence, despite being repeatedly asked to do so, and did not provide any on the motion. He relied on rule 31.04(3) for his position that the party who served first may proceed first. He argued that the rule cannot be used to compel the other side to proceed first.
[12] I agree with the plaintiff that serving a notice of examination first preserves that party’s right to set the order of discoveries (see Ferguson v. Peel Mutual Insurance Co. 2017 ONSC 2318 at paragraph 12).
[13] The defendant argued that this forced him to conduct an examination of the plaintiff rather than reserve that decision until after his client had been examined. He argued that his proposed order would allow the plaintiff to conduct her discovery and set the matter down. He would then have 60 days to decide whether to examine the plaintiff. Until argument of this motion, defence counsel had never taken the position that he wished to hear the defendant’s evidence before he decided whether he would examine the plaintiff. He had always maintained that his client should be examined second, presumably so that he would have the tactical advantage of knowing what evidence had been obtained from his client beforehand. His last word on this was his letter of 26 January 2022 where he stated:
“I received your Notice of Examination for February 28 2022 at 2:00 pm. I intend on Examining your client on the same day. Can you move your examination to 10:00 am so we can complete both examinations on the same day. If not, lets move the date to Wednesday February 23rd at 10:00 am and I will examine your client after you complete your examinations.”
[14] There are two problems with the defendant’s argument. First, the defendant was not forced into an examination. Just as in a discovery plan, a date and order was set for that examination. He could choose to forego the examination if he wished, but he could not ignore the schedule. Second, he did not have 60 days to decide whether he would examine the plaintiff. Morgan, J. had ordered that discoveries were to be concluded by 28 February 2022 and the defendant had offered up that last day for them to take place.
[15] Had the defendant’s position in January and February 2022 been an isolated incident, it may not have been warranted an order striking the defence, but with the background of the plaintiff’s months’ long attempts to schedule discoveries, the four earlier notices of examination and the many incidents of the defendant just ignoring the plaintiff’s emails, it is a reasonable conclusion that this objection was just another attempt to kick the discovery can further down the road.
[16] Further, the defendant continued to maintain this position in the face of the plaintiff’s confirmation that she would bring this motion to strike the defence if the defendant did not attend discoveries and in the face of the strong endorsement of Morgan, J. foreshadowing that imposing just another timetable would not be appropriate.
[17] The plaintiff commenced this wrongful dismissal action in August 2018 for payment in lieu of reasonable notice and for unpaid commissions. While the parties did conduct an unsuccessful mediation in July 2021, one year after mediation and four years after commencing her action, she has not been able to complete discoveries in this simplified rules matter. The plaintiff’s attempts through the summer and fall of 2021 were ignored and, when she had little option but to serve unilateral notices of examination, the defendant cancelled those examinations at the last minute.
[18] This kind of jockeying is particularly inappropriate in a small simplified rules case like this one. The plaintiff claims damages for wrongful dismissal on what appears to be a relatively straight forward record. The court in Lemyre v. Residential Energy Savings Products Inc. 2020 ONSC 7866 at paragraph 8 noted in wrongful dismissal cases that “it is easy for an employer to use its advantage to grind down a plaintiff with technical arguments”. The court further stated that “employers should have an incentive to settle valid claims. The damages are never very much compared to the cost of litigation.” The importance of fair conduct in wrongful dismissal cases in particular was noted by the Supreme Court of Canada in Wallace v. United Grain Grower Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 when it stated:
The law should be mindful of the acute vulnerability of terminated employees and ensure their protection by encouraging proper conduct and preventing all injurious losses which might flow from acts of bad faith or unfair dealing on dismissal, both tangible and intangible. I note that there may be those who would say that this approach imposes an onerous obligation on employers. I would respond simply by saying that I fail to see how it can be onerous to treat people fairly, reasonably, and decently at a time of trauma and despair. In my view, the reasonable person would expect such treatment. So should the law.
[19] Rule 34.15(1)(b) provides the court with discretion to strike a defendant’s statement of defence where the defendant fails to attend to be examined. Further, rule 60.12 provides that where a party fails to comply with an interlocutory order, such as that made by Morgan, J., the court may strike out a defendant’s defence. For the reasons outlined above, such an order is appropriate.
[20] Counsel were invited to upload their bills of costs and/or costs outlines at the conclusion of argument so that costs could be determined along with the motion rather than reserved. Counsel for the plaintiff uploaded his outline later that day. As of the release of this decision, the defendant has not uploaded any documentation on costs. Having reviewed the plaintiff’s costs outline, I fix costs of the motion in the all inclusive amount of $6,500 on a partial indemnity basis.
[21] Order to go in terms of the draft order attached which I have signed.
Associate Justice Jolley
Date: 22 August 2022