Court File and Parties
MOTION HEARD: 20220428, 20220929
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amalia Costa, Plaintiff
AND:
Edward Jones Investments, Defendant
BEFORE: Associate Justice B. McAfee
COUNSEL: C. Randall, Counsel, for the Plaintiff
B. Aberant and N. Deniset, Counsel, for the Defendant
HEARD: April 28, 2022, and September 29, 2022
REASONS FOR DECISION
1There are two motions before me. The plaintiff Amalia Costa (the plaintiff) moves for an order that the defendant Edward Jones Investments (the defendant) answer undertakings and refusals given on the examination for discovery of its representative held on October 20 and 21, 2020, production of a further and better affidavit of documents and re-attendance on examination for discovery. The defendant moves for an order that the plaintiff answer refusals given on her examination for discovery held on October 21, 2020, and re-attendance on examination for discovery.
2The plaintiff was employed with the defendant from February 15, 2016, until the termination of her employment on September 13, 2017. The plaintiff alleges that she was induced to leave her previous employment with the Royal Bank of Canada, where she worked for 26 years. The plaintiff also alleges, among other things, material misrepresentations on the part of the defendant with respect to her position with the defendant.
3On January 2, 2018, the plaintiff commenced the within action seeking total damages in the amount of $1,100,000 for breach of contract, wrongful dismissal, negligent misrepresentation and punitive and exemplary damages.
4The defendant denies any inducement and any misrepresentations and asserts that the plaintiff was lawfully terminated pursuant to the employment agreement and pleads that any amount owing to the plaintiff has been paid.
5The applicable Rules of Civil Procedure are as follows:
Rule 1.04(1) and (1.1):
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
Rule 29.2.03(1):
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.
Rule 31.06(1) and (2):
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.
(2) A party may on examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.
Rule 31.07(1):
31.07(1) A party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question if,
(a) the party or other person refuses to answer the question, whether on the grounds of privilege or otherwise;
(b) the party or other person indicates that the question will be considered or taken under advisement, but no answer is provided within 60 days after the response; or
(c) the party or other person undertakes to answer the question, but no answer is provided within 60 days after the response.
Rule 34.15(1)(a):
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 and 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.
6In Ontario v. Rothmans Inc., 2011 ONSC 2504 (Ont. S.C.J.) Justice Perell summarizes the principles concerning the scope of questioning on examinations for discovery at paragraph 129:
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.).
7I will now turn to the impugned undertakings and refusals. The undertaking and refusal numbers and wording are taken from the Form 37C charts. The questions are dealt with in the groupings argued on the motion.
Undertaking Nos. 1, 2, 8, 9, 10, 12, 13, 14, 15, 19 and 20 and Refusal Nos. 15, 16, 41, 21, 22, 23, 30, 28, 29, 33, 34, 40, 38 and 39 from the Examination for Discovery of the Defendant
8On April 28, 2022, during the first day of the hearing, it was agreed that the defendant will answer undertaking numbers 1, 2, 8, 9, 10, 12, 13, 14, 15, 19 and 20 and refusal numbers 15, 16, 41, 21, 22, 23, 30, 28, 29, 33, 34, 40, 38 and 39 as per the letter from defendant’s counsel dated April 27, 2022, and the defendant will provide a general description of efforts made to contact. It was agreed that the answers would be provided within 30 days of April 28, 2022.
Undertakings Nos. 4, 5, 6 and 7 from the Examination for Discovery of the Defendant
9These undertakings have not been answered. There is no evidence of best efforts made to look for Mr. Weddle’s files or contact Mr. Weddle. The fact that Mr. Weddle has retired is not determinative of the defendant’s obligation to answer its undertakings in this regard (see Air Canada v. McDonnell Douglas Corp., 1995 CanLII 7147 (ON SC), [1995] O.J. No. 195 (Ont. Gen.Div.) at paras. 49-56; aff’d, 1995 CanLII 7160 (ON SC), [1995] O.J. No. 4881 (Ont. Gen.Div.)). The undertakings remain outstanding and shall be answered or evidence of best efforts to answer provided.
Undertaking No. 11 from the Examination for Discovery of the Defendant
10The answer provided “None” is non-responsive. A responsive answer shall be provided to the undertaking.
Undertaking No. 3 from the Examination for Discovery of the Defendant
11It is the defendant’s position that the question was asked and answered at B-1-246 of CaseLines, being page 52 of the transcript of the defendant’s examination for discovery. I have reviewed the page of the transcript referred to in oral submissions and I am unable to locate where the specific question asked at undertaking no. 3 has been answered. Undertaking no. 3 has not been answered at page 52 of the transcript, remains outstanding and shall be answered.
Undertaking No. 17 from the Examination for Discovery of the Defendant
12In oral submissions the defendant took the position that the undertaking was asked and answered at B-1-209 in CaseLines (page 15 of the transcript of the defendant’s examination for discovery). Based on the oral submission, the plaintiff agrees that undertaking no. 17 was asked and answered.
Refusal No. 1 from the Examination for Discovery of the Defendant
13Ms. Wall gave evidence that she had training in workplace investigations. The plaintiff alleges that the plaintiff brought forward a complaint of bullying to Ms. Wall and that the defendant failed to investigate or take steps to address the plaintiff’s concerns. I am satisfied that asking about Ms. Wall’s experiences with workplace bullying and harassment is a proper question. I am satisfied that the question is relevant based on the pleadings and in particular based on the statement of claim at paragraph 33 and the statement of defence at paragraph 14. The question is not overly broad. The question shall be answered.
Refusal Nos. 2 and 3 from the Examination for Discovery of the Defendant
14I am satisfied that the questions are relevant based on the pleadings and in particular based on the statement of claim at paragraph 33 and the statement of defence at paragraph 14. In addition, the witness is required to prepare herself to answer questions which may reasonably be expected to be asked and is required to make reasonable inquiries of others (Air Canada v. McDonnell Douglas Corp., 1995 CanLII 7147 (ON SC), [1995] O.J. No. 195 (Ont. Gen.Div.) at paras. 49-56; aff’d, 1995 CanLII 7160 (ON SC), [1995] O.J. No. 4881 (Ont. Gen.Div.)). The questions shall be answered.
Refusal No. 7 from the Examination for Discovery of the Defendant
15The defendant takes the position that this question is no longer a refusal, and an answer has been provided. The answer provided is that the event was not videotaped. The answer does not provide any information regarding how it was determined that the event was not videotaped. There is no evidence of best efforts to ascertain whether the videotape exists (Madonia v. Mulder, 2001 CarswellOnt 1025 (Ont. S.C.J.) at para. 38). The question has not been answered and shall be answered.
Refusal Nos. 9, 10, 11, 12, 13 and 14 from the Examination for Discovery of the Defendant
16At paragraph 10 of the statement of claim the plaintiff pleads that she agreed to explore the opportunity of working at the defendant under the promise of working with Mr. Strizic. At paragraph 12 of the statement of claim the plaintiff pleads that she would not sign the letter of employment until she could receive assurance from Mr. Strizic that he had no plans to leave the defendant.
17At paragraph 17 of the statement of claim the plaintiff pleads that despite repeated inquiries regarding Mr. Strizic’s future with the defendant she was never advised of Mr. Strizic’s recent diagnosis and that, as a result, there was a significant likelihood that changes in the reporting structure would take place in the very near future.
18At paragraph 18 of the statement of claim the plaintiff pleads that she learned of Mr. Strizic’s health related retirement decision 6 months after she began working at the defendant. The plaintiff further pleads that she then approached Ms. Wall who advised the plaintiff that Mr. Strizic told Ms. Wall about the discussion between the plaintiff and Ms. Strizic wherein the plaintiff asked Mr. Strizic if he had plans to leave the defendant. Ms. Wall, it is pleaded, jointly decided with Mr. Strizic not to tell the plaintiff the truth in that regard.
19At paragraphs 20-22, the plaintiff pleads that following Mr. Strizic’s retirement, her position was vastly different from that which she was led to believe, and that representations and promises were not fulfilled.
20I am satisfied that refusal no. 9 is relevant based on the above-noted pleadings. The question shall be answered.
21Refusal no. 10 asks if Mr. Strizic became sick at any time while he was employed by the defendant. The question is overly broad and need not be answered.
22I am satisfied that refusal no. 11 is relevant based on the above-noted pleadings. The question shall be answered.
23Refusal no. 12 only asks for the defendant to look for Mr. Strizic’s employment file. There may be documentation in the file that is relevant to the matters in issue as set out in the pleadings. Mr. Strizic’s employment file, to the extent it exists, ought to be reviewed for relevant documentation. The question is proper and shall be answered.
24Refusal no. 13 is narrower in part. Although the whole file is requested, as set out in the chart the question subsequently stipulates that the plaintiff is looking for the medical records, the notes, the emails and the letters about when Mr. Strizic spoke to either Ms. Wall or Mr. Weddle about his condition. These specific records only in so far as they were narrowed regarding when Mr. Strizic spoke to Ms. Wall or Mr. Weddle, and not the whole file, are relevant to the above-noted pleadings and in particular the statement of claim at paragraphs 17 and 18. The narrowed request regarding the only those portions of the file about when Mr. Strizic spoke with Ms. Wall or Mr. Weddle shall be produced.
25Refusal no. 14 asks how the witness does not know. It is not a proper question and need not be answered.
Refusal No. 17 from the Examination for Discovery of the Defendant
26The plaintiff is asking questions about the type of file that would be in existence regarding Mr. Strizic. I am satisfied that the question is proper. The plaintiff is attempting to ascertain the type of documentation that may be in existence with respect to the matters in issue and the above-noted pleadings referred to in the preceding category. The question shall be answered.
Refusal No. 18 from the Examination for Discovery of the Defendant
27The request for production of Mr. Strizic’s entire Human Resources file is overly broad and need not be answered.
Refusal No. 19 from the Examination for Discovery of the Defendant
28Refusal no. 19 seeks production of all documentation in respect of the restructuring. The question is overly broad and need not be answered.
Refusal No. 20 from the Examination for Discovery of the Defendant
29The question asks whether Ms. Wall agrees with Mr. Slowakiewicz’s witness statement and if not, the parts she does not agree with. The statement was obtained shortly before examinations for discovery. Although the defendant did permit certain questions about the underlying events that may have been described in the statement, the defendant argues that because the document was not listed in the plaintiff’s affidavit of documents, it was not proper to ask questions about the document. I was not referred to authority in support of the defendant’s assertion during argument.
30The question is relevant based on the pleadings and in particular based on the statement of claim at paragraph 7 and the statement of defence at paragraph 7 and shall be answered.
Refusal No. 25 from the Examination for Discovery of the Defendant
31I am satisfied that the question is relevant to the issue of the reporting structure and the pleadings in the statement of claim at paragraphs 26 and 28 and the statement of defence at paragraphs 8 and 9. The fact that Tim Kirley may have retired from the defendant does not end the inquiry in that regard (Air Canada v. McDonnell Douglas Corp., 1995 CanLII 7147 (ON SC), [1995] O.J. No. 195 (Ont. Gen.Div.) at paras. 49-56; aff’d, 1995 CanLII 7160 (ON SC), [1995] O.J. No. 4881 (Ont. Gen.Div.)). The question shall be answered.
Refusal Nos. 31, 32 from the Examination for Discovery of the Defendant
32Following Mr. Strizic’s retirement, Mr. Rueschhoff was hired to replace him and assumed the role of Senior Product Leader. However, unlike Mr. Strizic, Mr. Rueschhoff was not a general partner and was not based in Canada.
33As set out in the chart, the first part of refusal no. 31 seeks production of Mr. Rueschhoff’s complete Human Resources file, which is overly broad and need not be answered.
34The second part of refusal no. 31 asks if Mr. Rueschhoff “lost Canada” in the next restructuring of the defendant. I am satisfied that this part of the question is relevant based on the pleadings and in particular based on the statement of claim at paragraph 26. The second part of the question shall be answered.
35Refusal no. 32 seeks Mr. Rueschhoff’s development plan. I am satisfied that the question is relevant based on the statement of claim at paragraphs 26, 29-33 and the statement of defence at paragraphs 13-15. The question shall be answered.
Refusal Nos. 24, 26 from the Examination for Discovery of the Defendant
36Refusal no. 24 is overly broad and need not be answered.
37Refusal no. 26, as narrowed to the plaintiff only, is relevant based on the pleadings and in particular based on the statement of claim at paragraph 31. The question shall be answered.
Refusal No. 27 from the Examination for Discovery of the Defendant
38Refusal no. 27 is overly broad and need not be answered.
Refusal No. 35 from the Examination for Discovery of the Defendant
39I am not satisfied of the relevance of refusal no. 35 based on the pleadings. The question need not be answered.
Refusal Nos. 36, 37 from the Examination for Discovery of the Defendant
40Refusal no. 36 is overly broad and need not be answered.
41Refusal no. 37 is narrowed to a specific conflict of interest during the relevant time when the plaintiff was employed by the defendant. I am satisfied that refusal no. 37 is relevant based on the pleadings and in particular based on the statement of defence at paragraph 13. The question shall be answered.
Refusal No. 1 from the Examination for Discovery of the Plaintiff
42Defendant’s counsel confirmed that production is not being sought at this time. Plaintiff’s counsel confirmed that the records have been requested but no response has been received and that the refusal is maintained.
43I am satisfied that this question, seeking only that the plaintiff request the records at this time, is a proper question and is relevant to the issue of inducement pleaded in the statement of claim at paragraphs 5-9. Best efforts to request the records shall be made.
Refusal No. 2 from the Examination for Discovery of the Plaintiff
44The question asks for the plaintiff’s understanding that when discussing a possible role with the defendant, Mr. Slowakiewicz did not have authority to make binding representations on behalf of the defendant. The defendant confirms that it is not seeking a legal opinion or legal conclusion rather the defendant is seeking the plaintiff’s understanding at the relevant times given that Mr. Slowakiewicz was not an employee of the defendant.
45I am satisfied that the plaintiff’s understanding in this regard is a relevant and proper question based on the pleadings and in particular based on the statement of claim at paragraphs 5-9. The question shall be answered.
Refusal No. 3 from the Examination for Discovery of the Plaintiff
46The plaintiff takes the position that the question was asked and answered at Question 170. Although counsel does not have the right to repeatedly ask the same question or a variation of that question, counsel does have the right to rephrase and reframe questions in order to obtain meaningful admissions (Braden v. Knisley Estate, 2010 SKQB 335 at paras. 43-45). The same question was not improperly and unnecessarily re-asked. I am satisfied that the question is proper in the circumstances. The question shall be answered.
Refusal No. 4 from the Examination for Discovery of the Plaintiff
47The plaintiff takes the position that the question was asked and answered at Questions 171 and 172. For the reasons given with respect to refusal no. 3, the question shall be answered.
Refusal No. 5 from the Examination for Discovery of the Plaintiff
48I am satisfied that the question is relevant based on the pleadings and in particular based on the statement of claim at paragraphs 25-27 and the statement of defence at paragraph 13. The question shall be answered.
Timing of Answers to Opposed Undertakings and Refusals
49Any opposed undertakings and refusals ordered to be answered shall be answered within 60 days of the release of the reasons for decision.
Production of Further and Better Affidavit of Documents from Defendant
50During submissions, the defendant consented to an order that it shall serve a supplementary affidavit of documents listing all documents produced or ordered to be produced since service of the defendant’s affidavit of documents within 60 days of the release of the reasons for decision.
Re-Attendance of the Defendant and Plaintiff on Examinations for Discovery
51During submissions, the parties consented to an order that they shall re-attend on examinations for discovery to answer any proper questions arising from any answers to undertakings and arising from answers to questions refused and subsequently answered by agreement or ordered to be answered.
Costs
52The parties are directed to make reasonable attempts to agree to a costs disposition for the motions. If after making reasonable attempts to do so the parties are unable to agree, any party seeking costs shall serve and email to assistant trial coordinator teanna.charlebois@ontario.ca, their costs submissions not to exceed three pages in length on or before January 31, 2023. Any responding costs submissions not to exceed three pages in length, shall be served and emailed on or before February 17, 2023. Reply costs submissions, if any, not to exceed two pages in length, shall be served and emailed on or before February 24, 2023. The costs submissions shall be submitted with an affidavit of service. I note that the plaintiff’s costs outline and the defendant’s bill of costs were uploaded to CaseLines and further copies of same are not required.
Associate Justice B. McAfee
Date: December 28, 2022