Court File and Parties

COURT FILE NO.: CV-18-598346

RELEASED: 2022/12/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Suzana Kovacevic v. Emir Kovacevic

BEFORE: Associate Justice Graham

HEARD: December 19, 2022

APPEARANCES: Suzana Kovacevic, plaintiff in person (moving party) Marek Tufman for the defendant Sonia Regenbogen for the non-party AB Sciex Ltd.

Reasons for Decision

(Re: plaintiff’s motion for further production from the defendant and production of non-party records from AB Sciex Ltd.)

[1] The plaintiff Suzana Kovacevic (“Suzana K.”) and the defendant Emir Kovacevic (“Emir K.”), who are not related, met in 2014 while they were both working at AB Sciex Ltd. (“Sciex”). Suzana Kovacevic alleges that they became involved in a romantic relationship which Emir K. denies. Suzana K. alleges that she ended the relationship after seven months following which she continued to work at Sciex for another eight months until her employment was terminated for cause in March, 2016. Suzana K. further alleges that she was never informed by Sciex Human Resources (“HR”) of the cause for her termination.

[2] Suzana K. alleges that Emir K. initiated a series of “made-up harassment claims” that he reported to Sciex HR on various occasions during the last six months of her employment, and to the police after the termination of her employment. She became aware of these harassment claims against her when the police contacted her in April, 2016.

[3] On August 16, 2016, Suzana K. attended at the Sciex premises to attempt to speak with someone at Sciex HR. She alleges that when she arrived at Sciex, she encountered Emir K. outside the parking lot, and they drove in separate cars to a nearby plaza, where Emir K. assaulted her. Suzana K. further alleges that Emir K. lied to the police by telling them that she had assaulted him, resulting in criminal charges against her.

[4] Suzana K. claims from Emir K. damages for personal injuries sustained in the assault, and for what is in effect malicious prosecution (although those words are not used in the statement of claim) “when the Defendant intentionally lied to the Police causing the Plaintiff to be wrongfully charged with serious criminal offences.” She also claims financial hardship arising from the “wrongfully pressed criminal charges” that compromised her employability following her termination from Sciex.

[5] On June 15, 2021, Suzana K. brought a motion for various relief including production of records from AB Sciex Ltd. as a non-party relating to their investigation of events reported to them by Emir K.. On that date, I adjourned that portion of the motion so that the plaintiff could effect proper service on the non-party AB Sciex Ltd..

[6] On April 13, 2022, I heard the plaintiff’s motion to amend her statement of claim and I released my endorsement on April 19, 2022 (Kovacevic v. Kovacevic; 2022 ONSC 2340) allowing some but not all of the proposed amendments. The plaintiff subsequently filed a Fresh as Amended Statement of Claim in accordance with the rulings in my endorsement. At the hearing, I once again endorsed that the plaintiff consult counsel for AB Sciex Inc. when re-scheduling the motion for non-party productions.

[7] The plaintiff now brings a motion for the following orders:

1. Production from the defendant of his bank statement for December 29, 2014 in relation to an alleged payment of approximately $180.00 to Costco for which the plaintiff says she reimbursed him in cash on the same day.

2. Production from Sciex of HR records of investigation into the defendant’s harassment claims against the plaintiff, and of video camera footage, as set out in greater detail in paragraph 20 of the plaintiff’s factum and below.

Motion for production of defendant’s bank statement for December 29, 2014

[8] The plaintiff previously brought a motion for the same relief on June 15, 2021. In my endorsement of that date, I summarized the plaintiff’s position with respect to the relevance of the bank statement as follows:

5 The plaintiff seeks an order that the defendant produce his bank records from December 29, 2014. She alleges that on that date, she and the defendant went to Costco together for her to buy groceries but Costco would not allow her to pay by Visa. She alleges that the defendant paid $180.00 for the groceries by way of a debit transaction, and she subsequently withdrew $180.00 in cash using her Visa card to pay him back. The plaintiff says that she was not able to ask for the bank record at examinations for discovery because she was interrupted by defendant’s counsel.

6 The plaintiff alleges that in December, 2014, she and the defendant were involved in a romantic relationship, which the defendant denies. The plaintiff relies on a series of Skype text messages to substantiate that the parties were in a romantic relationship, but the defendant denies that he sent any of these messages. The message for December 29, 2014 refers to them having been at Costco and the plaintiff submits that the bank records, including the plaintiff’s debit payment at Costco and her subsequent cash withdrawal from her Visa account, would corroborate the substance of the text messages.

[9] The plaintiff’s submission on June 15, 2021 and reiterated on the current motion is that her romantic relationship with the defendant (which the defendant denies) provides the context for what she characterizes as “made-up harassment claims” commencing in October, 2015, and for the physical assault that she alleges occurred on August 16, 2016. In my June 15, 2021 endorsement I dismissed the plaintiff’s motion on the basis that there was no pleaded allegation that the events described in the statement of claim as it was then constituted occurred in the context of a previous romantic relationship between the parties.

[10] The plaintiff subsequently brought the motion to amend her statement of claim argued on April 13, 2022 and among the amendments permitted and now included in the current statement of claim are pleadings (in paras. 2.5 and 2.6) that while the parties were working at AB Sciex Ltd., they embarked on a romantic relationship that lasted approximately seven months. Suzana K. now renews her motion for the same bank records on the basis that the romantic relationship between her and Emir K. is placed in issue by the amended pleading.

[11] Although Emir K. argues in his responding material that Suzana K’s motion for production of his bank record is an improper attempt to relitigate a decided issue, he did not press this position at the hearing of the motion. As I stated to defendant’s counsel at the hearing, an amended pleading can give rise to a change in the scope of documentary production such as to render relevant a document previously determined to be irrelevant.

[12] Prior to the hearing of the renewed motion, Emir K. produced his banking record from TD Canada Trust for the period commencing December 1, 2014 which includes a single entry of December 29, 2014 from “TD ATM W/D” with the amount redacted. Suzana K. does not accept that production of this record is sufficient because the amount is redacted and because the account appears to be an account jointly held by Emir K. and his wife. She submits that it is implausible that Emir K. would have paid for her groceries using an account that his wife also had access to.

[13] The defendant submits that he has produced what he has by way of banking records for December, 2014 and has nothing more to produce. In his responding affidavit sworn December 12, 2022, Emir K. swears that the entry in the December 29, 2014 banking record provided is “made on my only interact [sic] account which I had in December 2014.” Defendant’s counsel advised that Emir K. is prepared to produce a copy of the statement produced with the amount of the December 29, 2014 transaction unredacted.

[14] The court cannot order the defendant to produce something that he swears that he does not have and with respect to which there is no evidence to the contrary. I therefore make no order for production of any further documents. In accordance with defendant’s counsel’s representation at the hearing, Emir K. shall produce a copy of his TD Canada Trust statement for December, 2014 showing the amount of the December 29, 2014 transaction.

Motion under rule 30.10 for production from the non-party AB Sciex Ltd.

[15] In her notice of motion, the plaintiff Suzana K. seeks an “order for production of third party records from AB Sciex Ltd.”. In paragraph 20 of her factum, Suzana K. particularizes the records that she wants ordered to be produced and I have referred to each specific document or category of documents in my rulings below.

[16] The motion for production of documents from Sciex is brought under rule 30.10(1):

30.10(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action, and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[17] What constitutes “a material issue in the action” is determined by the pleadings and in particular, by the claims being advanced by the plaintiff. For ease of reference, in paragraph 12 of her factum Suzana K. summarizes the claims for which she is “seeking remedy” as follows:

• “wrongfully pressed criminal charges Defendant effected by purposely lying to the Police:
• destruction of Plaintiff’s career due to wrongfully pressed criminal charges and effects this has had on the plaintiff’s overall financial situation;
• bodily injuries Plaintiff sustained when the Defendant physically attacked and assaulted her.”

[18] In addition, Suzana K.’s statement of claim includes a claim for relief “for intentional infliction of mental and emotional distress” and damages “for the Plaintiff’s inability to search for a job to match the salary she had before she was wrongfully fired from her job for “just cause”.” (para. 1.(c))

[19] The body of the statement of claim includes the following allegations (paras. 3.9 and 5.1):

3.9 Emir initiated a series of what can only be described as made-up harassment claims and he allegedly reported them to HR at different intervals in the span of the last six (6) months of Suzana’s employment and to the Police after Suzana’s employment was terminated for “just cause”.

5.1 Emir intentionally caused psychological and emotional harm to Suzana. He not only got Suzana fired from her job by making up harassment claims against her, but his manipulation was so devious that he thought if he reported harassment to the Police right after Suzana got fired even though it was not real and Suzana would not be charged, he would still be successful in preventing Suzana to come to Sciex and therefore figure out the real reason why she got fired.

[20] The focus of the argument on Suzana K.’s motion for production from Sciex was on Sciex’s records of their investigation into Emir K.’s harassment claims from October, 2015 to March, 2016 that were ultimately reported to the police.

[21] Suzana K. submits that Emir K. made reports to Sciex HR that would have led to investigations with respect to three incidents:

1. An anonymous letter that was left on Mr. Racine’s chair (Mr. Racine being Emir K.’s manager) in October, 2015 asserting that Emir K. had been involved in an intimate relationship with a subordinate. Emir K.’s discovery evidence was that because his name was mentioned in the note, Sciex HR invited him and Luke Racine to discuss the note (Q. 496). Emir K. does not know if a report was prepared by Sciex HR but “I would assume I’m sure there is something with HR.” (Q. 535) Emir K. also deposed that no one suspected that the note was left by Suzana K. (Q. 574). Emir K. did not report this incident to the police at that time (Q. 593).

2. A telephone call made on January 28, 2016 by an unidentified male to Emir K.’s wife informer her that Emir K. was having an affair with a subordinate, Kate (Q. 666). Emir K. reported this to Sciex HR (Q. 746); he does not know what HR’s response was but speculated that they “recorded it, put it somewhere”. (Q. 747).

3. A telephone call made on March 3, 2016 by an unidentified male to Kate’s husband stating that Kate was having an affair with Emir K. (Q. 759). This incident was reported to Sciex HR, who spoke with Emir K. and Kate (Q. 784). Emir K. also testified that HR put the information received with respect to these incidents “in the same file that later on we linked clearly to you [i.e. Suzana K.]” (Q. 788).

[22] According to the York Regional Police General Occurrence report dated April 13, 2016, Emir K. reported these incidents to them and stated that he believed that “the suspect” (i.e. Suzana K.) was responsible for leaving the note with Mr. Racine and arranging the two calls made by the unidentified male.

[23] Emir K. acknowledges meeting with Sciex HR with respect to the three incidents described above. Although Suzana K. acknowledges that there is no evidence that the police received any information from Sciex, Emir K. reported the same three incidents to the police when he made his complaint on April 13, 2016.

[24] Suzana K. alleges in this action that Emir K.’s reports to Sciex HR caused or contributed to the termination of her employment, for which she claims damages for intentional infliction of mental suffering. On this basis, she submits that any records that Sciex may have with respect to Emir K.’s reports to Sciex HR are relevant to the material issue of whether those reports led to the termination of her employment and her resulting damages.

[25] Counsel for Sciex submits that the termination of Suzana K.’s employment at Sciex was unrelated to any harassment complaints made by Emir K.. Sciex relies on the fact that Suzana K. was hired as an independent contractor to provide services for Sciex by way of a contract between an agency called Systematix and Suzana K.’s company Mianiko Inc. for the period from April 7, 2014 to October 10, 2014. According to the responding affidavit of Michael Cowhig, vice president and general counsel to Sciex, Suzana K.’s contract was extended a number of times, until December 12, 2015, when she was told that her contract would end “at the end of March 2016”, and then specifically as of March 31, 2016.

[26] Sciex relies on a letter dated March 16, 2016 from Systematix to Mianiko Inc. (Attention: Suzana Kovacevic) stating that “Systematix’s current contract (in which we represent your firm’s services) with Sciex has been terminated with just cause”, such that the contract between Mianiko Inc. and Systematix is terminated. Based on this letter, Sciex submits that Ms. Kovacevic was not terminated by Sciex, nor could she have been, because she was never an employee of Sciex. Therefore, the Sciex HR records of which Suzana K. seeks production are not relevant to the issue of whether Emir K.’s “made-up harassment claims” led to the termination of Suzana K.’s employment at Sciex.

[27] The documents forming the record for the motion also include an internal email dated March 15, 2016 from Scott Cundy of Sciex to various Sciex employees, including Brenda Meloche of Sciex HR stating that “I want to advise you that I have terminated Suzana’s contract today; effective immediately. I am notifying you because she is working on our critical project.” His explanation for the termination is that Sciex had hired “Theresa” as a full time clinical affairs specialist. It is also clear that, although the formal contract for Suzana K.’s services was between Systematix and Mianiko Inc., the fact that Mr. Cundy wrote that “I have terminated Suzana’s contract today” means that in substance, Suzana K. was hired by Sciex and could be terminated at their initiative.

[28] These two documents relating to the termination of Suzana K.’s contract with Sciex do not conclusively determine why her contract was terminated. In his email of March 15, 2016 Mr. Cundy states that he terminated Suzana K.’s contract “effective immediately”, he does not state why the contract was terminated only 16 days before its end date, but he sees fit to tell the recipients of the email what explanation to provide for her termination. The March 16, 2016 letter from Systematix states that the contract “has been terminated with just cause”, but it contains no particulars of the alleged cause. The email and the letter do not refute the allegations in Suzana K.’s statement of claim that her termination was related to Emir K.’s allegedly fabricated claims of harassment and therefore do not render irrelevant the records that Suzana K. seeks on this motion.

[29] Counsel for Sciex acknowledges Emir K.’s reports to Sciex related to the anonymous note left for Mr. Racine and on an unidentified man’s anonymous messages left with Emir K.’s wife and the husband of the Sciex employee “Kate”, but submits that it is plausible that no investigation was conducted by Sciex because the anonymity of the communications would provide no concrete basis for any investigation.

[30] In his responding affidavit on behalf of Sciex, Mr. Cowhig deposes (para. 10) that Suzana K. never brought a complaint to Sciex and Sciex had no knowledge of any personal relationship between her and Emir K.. Mr. Cowhig also deposes (para. 11) that “Sciex Human Resources did look into the concerns raised by Emir Kovacevic . . . raised in respect of workplace issues including whether the Plaintiff had participated in any threatening behaviour.” (emphasis added) Counsel for Sciex on the motion advises that there are no such reports arising out of Sciex HR’s enquiries, but acknowledges that there is no evidence filed on the motion to that effect.

[31] Counsel for Sciex submits that the threshold for a rule 30.10 order is high and the documents sought must be necessary to resolve the issues in dispute in the pending litigation. In this case, nothing that the employer was ever privy to would assist in resolving the issues between the parties which arise from the alleged assaults and malicious prosecution. Sciex has no evidence that any information that they compiled based on what Emir K. informed Sciex HR was provided to the police.

Rulings on the motion for production from AB Sciex Ltd.

[32] With respect to the orders sought by Suzana Kovacevic for production of Sciex’s HR records and correspondence, my rulings are as follows (addressing each topic from para. 20 of her factum):

1. HR records of investigation into Defendant’s harassment claims against the Plaintiff from October 2015 until March 2016 that ultimately resulted in Plaintiff’s criminal charges.

Ruling: Suzana K. alleges and the evidence on the motion is that between October, 2015 and March, 2016 Emir K. made various claims of harassment to Sciex HR. On April 13, 2016, when reporting these same incidents to York Regional Police, Emir K. stated that he believed that Suzana K. was responsible for leaving the note with Mr. Racine and arranging the two calls made by the unidentified male to Emir K.’s wife and Kate’s husband.

Based on paragraphs 3.9 and 5.1 of the statement of claim (see para. [19] above) and on a broad reading of the entire pleading, Suzana K.’s claim for damages for intentional infliction of mental distress is based on Emir K.’s reports of harassment both to the police and to Sciex HR. Further, Emir K.’s reports to the police leading to the criminal charges that are the subject of Suzana K.’s malicious prosecution claims are largely a reiteration of his reports to Sciex. The substance of Emir K.’s reports to Sciex HR are therefore relevant to the material issues of whether Emir K. inflicted mental suffering upon Suzana K. by fabricating harassment claims to her employer Sciex and whether he initiated a malicious prosecution against her.

It is often said that the trial of an action is a search for the truth. The trial court in this case will determine whether the defendant Emir K. made unfounded allegations to Sciex and to York Regional Police about Suzana K.’s conduct. In Mr. Cowhig’s responding affidavit, he acknowledges that Sciex HR looked into Emir K.’s concerns, “including whether the Plaintiff had participated in any threatening behaviour” which means that someone at Sciex must have connected Suzana K. to the reported incidents. Any documents that Sciex created when “look[ing] into the concerns that Emir Kovacevic raised” may well assist the court in fairly adjudicating the issues before it. Applying rule 30.10(1)(b), I conclude that it would be unfair to Suzana K. to proceed to trial without discovery of Sciex’s documents with respect to Emir K.’s harassment complaints and any ensuing investigation.

In oral submissions, counsel for Sciex informed the court that Sciex has no documents relating to any investigation of Emir K.’s reports of harassment but acknowledged that Sciex had not provided any evidence to that effect. Mr. Cowhig’s responding affidavit was sworn in response to Suzana K.’s original motion for production of documents from Sciex on September 27, 2021, approximately 5 ½ years after Emir K.’s last report to Sciex HR in March, 2016. Suzana K. then swore a further affidavit on October 27, 2021, more than 13 months before this motion was argued, but Sciex filed no further responding material.

Sciex has provided no evidence that no documents were created with respect to Emir K.’s reports or any ensuing investigation. At the hearing, Sciex’s counsel offered to file additional evidence regarding the existence of any documents, but parties cannot be permitted to fill holes in their material after the fact. Sciex shall therefore produce to Suzana K. and Emir K. all their documents recording any claims by Emir K. of harassment by Suzana K. and relating to any investigation of such claims.

2. HR records of employment termination of Defendant’s “mistress” [F.C.] whose employment was terminated after ten (10) years of employment five (5) months before Plaintiff’s start at Sciex. The plaintiff submits that this employment termination was also related to work attendance issues.

Ruling: These records relate to another Sciex employee whose employment at Sciex, by the plaintiff’s own admission, ended five months before her own employment began. These records are therefore of no relevance to any material issue in the action. Motion dismissed.

3. HR records of anonymous complaints against the Plaintiff respecting working hours (August 2015).

Ruling: These are anonymous complaints that have not been attributed specifically to Emir K. or to anyone else. There is therefore no connection between these records and Suzana K.’s claims against Emir K. for malicious prosecution or infliction of mental suffering and they are therefore not relevant to any material issue in the action. Motion dismissed.

4. Sciex correspondence with Systematix and with Scott Cundy (Plaintiff’s manager) regarding termination of Plaintiff’s employment for “just cause”.

Ruling: In para. 3.8 of the statement of claim, Suzana K. alleges that Emir K. “worked with senior management in the background to terminate Suzana’s employment.” This pleading is part of the plaintiff’s claim for damages for intentional infliction of mental and emotional distress. Further, there is no evidence that Suzana K. has ever been informed of the “just cause” that was the basis for the termination of her contract on March 15, 2016. The requested correspondence is therefore relevant to the material issue of whether Emir K. intentionally inflicted mental distress on the plaintiff by making false claims of harassment to Sciex leading to Suzana K.’s termination, and it would be unfair to require Suzana K. to proceed to trial without it. The documents shall be produced.

[33] With respect to the orders sought by Suzana Kovacevic that Sciex produce video camera footage, my rulings are as follows:

1. Footage from the Sciex cafeteria from December, 2014.

Ruling: Michael Cowhig, in his responding affidavit, deposes that Sciex has not retained video surveillance of the Sciex cafeteria from December, 2014. Therefore, this document does not exist. Motion dismissed.

2. Footage from a hallway at Sciex where Emir Kovacevic alleges an anonymous harassment note was left in the office of Luke Racine (a manager at Sciex) in October, 2015.

Ruling: In support of her motion, Suzana Kovacevic relies on her affidavit sworn October 27, 2021. There is no evidence in this affidavit that there was a surveillance camera in the area for which the plaintiff is seeking video footage. Motion dismissed.

3. Footage from the Sciex parking lot on August 16, 2016, the day that she alleges that Emir Kovacevic assaulted her.

Ruling: It is common ground that an altercation occurred between the parties on August 16, 2016. The notes from the police investigation on August 17, 2016 indicate that Brenda Meloche “who is HR at Sciex” informed the police of “video of Suzana following Emir on the 16th, can clearly see her according to Brenda.” However, Suzana K.’s pleading is that the altercation, which Emir K. reported to the police, and which is the subject of her claim for damages for assault, occurred in the parking lot of a nearby plaza and not in the Sciex parking lot. So, even assuming that video footage from the Sciex parking lot still existed six years later, any such footage would not show what happened in the nearby plaza parking lot and would be of no relevance to any material issue in the action. Motion dismissed.

Costs

[34] At the conclusion of the hearing, I informed counsel and Ms. Kovacevic that I would accept written submissions on the issue of costs. If the plaintiff, defendant and Sciex cannot agree on the disposition of the costs of the motion, they shall make written submissions, not to exceed three pages, with no attachments other than a costs outline also not exceeding three pages, the defendant and Sciex by January 20, 2023 and the plaintiff by February 17, 2023. Submissions shall be filed with ATC Teanna Charlebois: Teanna.charlebois@ontario.ca .

[35] For the assistance of the parties and Sciex in attempting to resolve the issue of costs, my preliminary view is that success on the plaintiff’s motion for production from Sciex is sufficiently divided that there should be no costs of that motion. Although Sciex was successful in resisting production of five of seven categories of documents, the bulk of the time spent on the motion concerned the plaintiff’s request for Sciex’s documents relating to its receipt and investigation of the defendant’s reports of harassment, and on which the plaintiff was successful.

[36] With respect to the motion for production of the defendant’s bank records for December 29, 2014, the defendant took the position in correspondence and responding affidavits that the plaintiff was attempting to re-litigate an issue that the court had already decided. As stated in para. 11 above, the pleading amendments permitted in my Endorsement of April 19, 2022 could change the scope of documentary production, thus making relevant the banking records in question. It was therefore reasonable for the plaintiff to renew her motion and it was not until service of the defendant’s responding motion record dated December 12, 2022 that she received the defendant’s affidavit of the same date containing his sworn statement that the bank records provided were from “my only interact account which I had in December 2014”. Also for the assistance of the parties, my preliminary view with respect to the defendant’s motion against the plaintiff is that there should be no costs of that motion.

ASSOCIATE JUSTICE GRAHAM

December 28, 2022