BARRIE COURT FILE NO.: CV-22-767
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Debbie Roberts Plaintiff
– and –
Georgian College, David Coward, Maher Ghalayini and Pavla Kazda Defendants
Counsel: Glyn Hotz, for the Plaintiff Elisha C. Jamieson-Davies and Anoushka Zachariah, for the Defendants
HEARD: December 9, 2022
REASONS FOR DECISION
1The Defendants bring this motion for an Order to quash several summonses for employees and a former employee of Georgian College (the College). The summonses were issued, or are to be issued, by the Plaintiff, in relation to a motion for an interlocutory injunction the Plaintiff is bringing, and which is scheduled to be heard on February 16, 2023.
2The Defendants argue that the summonses are nothing more than a fishing expedition. The Plaintiff argues that the evidence to be obtained under the summonses is necessary to meet her onus to prove "a strong likelihood of success" as a condition for obtaining a mandatory interlocutory injunction.
3As will be discussed below, both the list of persons sought to be summonsed and the relief claimed in the motion for an interlocutory injunction have been something of a moving target over the course of the pretrial machinations. The Plaintiff has served various versions of the motion for an interlocutory injunction and her list of persons to be summonsed continues to fluctuate as persons are added or removed. While these changes may have been the result of evolving circumstances since June 2022, it has resulted in some confusion. The parameters of both have now been firmly fixed, and I will consider the Defendants' motion to quash on the basis of the final iteration of the Plaintiff's motion for an interlocutory injunction and list of persons to be summonsed.
Facts
The Action
4The Plaintiff, Dr. Debbie Roberts, is a professor at Georgian College's Automotive Business School. Dr. Roberts applied for the position of Associate Dean of the College's Automotive Business School on February 14, 2022. She was interviewed for the position on April 20, 2022. On May 18, 2022 Dr. Roberts was advised that the College intended to offer the position to an external candidate.
5On June 3, 2022, Georgian College offered the position of Associate Dean to Dr. Seppy Masoodi. Dr Masoodi accepted the position on June 6, 2022, with a starting date of August 2, 2022, but resigned on August 11, 2022. She is now employed at the University of Victoria in British Columbia. On August 25, 2022, the College re-posted the position, and this re-posting has been the focus of the interlocutory injunction motion.
6Dr. Roberts commenced this action sometime in June, 2022. The procedural history of this action is somewhat confusing. I have found a Statement of Claim dated June 14, 2022 in the file, and a Statement of Claim dated July 20, 2022. There is also a Notice of Application date June 20, 2022. Nothing is filed in any kind of chronological order, and I am not sure which Statement of Claim is the official version or why the date was changed. I do not know which is the correct date or whether the two Statements of Claim are identical, or whether or when both were served, although there is no indication that the Statement of Claim was ever amended. As indicated below, the Notice of Application was withdrawn by the Plaintiff on June 24, 2022.
7The Statement of Claim is 51 pages long. In it, Dr. Roberts seeks general damages of $2,500,000 and aggravated and punitive damages of $1,500,000, in addition to damages for lost income and lost pension benefits. The Statement of Claim alleges, among other things, that there was an intentional scheme of collusion by the Defendants that was designed to exclude Dr. Roberts from the promotion to Associate Dean. Dr. Roberts pleads the tort of civil conspiracy, breach of the Human Rights Code, wrongful failure to promote, infliction of mental suffering, breaches of the Charter, breach of fiduciary duty and employment equity, negligence, wrongful termination and constructive dismissal.
8The Defendants have not yet filed a Statement of Defence because they intend to bring a motion to have the claim dismissed on the ground that it relates to a matter that should be addressed through the grievance procedure under the provisions of the applicable collective agreement: Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 SCR 929; Nelson et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 5415, at para. 21
Motion for Interlocutory Injunction
9The relief claimed in the motion for an interlocutory injunction has changed over time.
June 20, 2022 Application
10The Plaintiff originally commenced a separate "Application" for interlocutory relief on June 20, 2022. The Application was returnable on June 24, 2022.
11The parties appeared before Corkery J. on June 24, 2022, and the Plaintiff withdrew the application "without prejudice to the Applicant moving for an injunction" in the action that had been commenced.
July 14, 2022 Motion
12The first motion for an interlocutory injunction was dated July 14, 2022, and sought an Order prohibiting Georgian College:
from giving effect on August 2, 2022 to the hiring of the candidate allegedly successful and hired for the position of Associate Dean for the Automotive Business School of Canada beginning on August 2, 2022.
13The July 14, 2022 motion also sought an Order that the College:
reconstitute a fair hiring committee to re-interview candidates, conforming to the requirements of procedural fairness, or else mandating Georgian College to place Dr. Roberts in at least an equivalent, agreed upon position, if she is not made Associate Dean.
14There were several other injunctions requested relating to the conduct of the Plaintiff's action, such as an interlocutory injunction against "obstructing the prosecution of these matters by withholding documents" and "obstructing the administration of justice", and an Order for an injunction mandating the College to provide records and documents. None of these procedural demands are really motions for interlocutory injunctions. If, over the course of these proceedings, the Plaintiff wants disclosure and production of documents under Rule 30 of the Rules of Civil Procedure, she should bring a motion for disclosure and production of documents at the appropriate time, and not a motion for an interlocutory injunction.
15The Plaintiff also requested Orders for "declarations" relating to Plaintiff's allegations, which were not really declarations at all, but a request that the Court make certain findings of fact in the Plaintiff's favour. Such declarations/factual findings are not available on a motion for interlocutory relief. They are akin to a motion for partial summary judgment and cannot be "bootlegged" into a motion for interlocutory relief. Seeking such relief in the guise of a motion for an interlocutory injunction is an abuse of process.
16The July 14, 2022 motion proceeded before McCarthy J. on July 26, 2022, but was adjourned at the request of the Plaintiff/Moving Party to permit the parties to agree on a timetable for cross-examinations on affidavits and arrange for a full day hearing.
September 19, 2022 Motion
17On September 19, 2022, the Plaintiff issued her second Notice of Motion for an interlocutory injunction. By this time, Dr Masoodi had already started the job as Associate Dean and left the position, so that the Associate Dean position was once again vacant.
18The September 19, 2022 motion requested an Order:
Prohibiting Georgian College from interfering in the already live injunction for relief sought...by requiring that the College immediately refrain from vetting candidates and interviewing candidates on the renewed posting for Associate Dean...and attempting to alter the status quo once again before the merits of the injunction are determined.
19This language was, at best confusing. There was no "live injunction" to be interfered with. Counsel for the Plaintiff explained in his oral submissions that by "live injunction" he really meant "pending injunction motion".
20The September 19, 2022 motion also sought some of the relief requested in the July 14, 2022 motion, and asked for an Order to examine 5 witnesses.
21The parties then appeared before Sutherland J. on September 23, 2022 for a Case Conference. At the conference the parties agreed to a consent order that the College would "take no action whatsoever to fill the position of Associate Dean...until after December 9, 2022 or any further Order of this Court".
22The Plaintiff's claim for injunctive relief was adjourned to the last week of the November 2022 trial sittings because a full day was required to argue the motion.
23The Plaintiff served, or attempted to serve, several summonses on various witnesses. The Plaintiff wanted to examine these witnesses in support of her motion for an interlocutory injunction. Several court appearances occurred for scheduling purposes which are not germane to this analysis.
24The parties next appeared before Edwards R.S.J. on November 25, 2022, and agreed to a timetable for the motion to quash the summonses – which I heard on December 9, 2022 as per the timetable - and the motion for the interlocutory injunction, which is now scheduled for February 16, 2023.
25The parties agreed that the consent Order of Sutherland J. dated September 23, 2022 would be extended on consent to February 16, 2023. The Order stipulated that if the Plaintiff's motion for an interlocutory injunction was not heard by February 16, 2023, it may not be extended except by further agreement of the parties or further Order of the Court.
December 16, 2022 Motion
26At the hearing on December 9, 2022, there was some confusion as to which of the two Notices of Motions for an interlocutory injunction the Plaintiff was relying on – the July 14, 2022 Notice or the September 19, 2022 Notice. Counsel for the Defendant, fairly in my view, proceeded on the assumption that the latter Notice of Motion had replaced the former. Counsel for the Plaintiff vacillated between the two, and eventually advised that he was seeking some relief from each. Accordingly, at my request, Counsel for the Plaintiff agreed to file a fresh Notice of Motion on December 16, 2022.
27The December 16, 2022 Notice of Motion seeks the following relief:
The reconstitution of a fair and unbiased hiring committee in Competition #370-22 that conforms to the requirements of procedural fairness, as defined hereunder ...
...
An Order continuing the consent Order that the College takes no steps to fill the position of Associate Dean until the merits are determined.
An Order for the cross-examination under Rule 39.03 of some or all of the following witnesses (subject to the determination of the motion to quash): Sandra Quail, Kim Townes, Maher Ghalayini, Seppy Masoodi, each for 3.0 hours, and Angela Lockridge and David Coward for 1.5 hours.
28Paragraph two of the relief sets out some of the principles of "procedural fairness" requested by the Plaintiff, including "requiring oversight of the appointment of the hiring committee ...by the Board of Governors..." and "requiring that the hiring committee maintain cameras on during the entire interview", and "an Order that hiring committee members are not allowed to text or communicate with one another during the candidates' interviews".
29It is immediately apparent that paragraphs 1 and 3 are mutually exclusive. Paragraph one seeks an Order requiring the College to run the Associate Dean competition (albeit with certain specified restrictions), while paragraph 3 seeks an Order prohibiting the College from running the Associate Dean competition. Although not stated specifically, I assume that paragraph 3 must be an alternative to paragraph 1, and I will proceed on that basis.
Witness Summons
30While the identity of the persons to be summonsed has fluctuated over time, when the motion was argued on December 9, 2022, the Plaintiff was seeking to examine the following seven persons:
- David Coward, Vice President of Human Resources
- Maher Ghalayini, Associate Vice President of Academic
- Kevin Weaver, President and CEO of Georgian College
- Kim Townes, Human Resources Consultant
- Sandra Quail
- Angela Lockridge, Vice President
- Dr. Seppy Masoodi, Successful Candidate for Associate Dean and former employee of Georgian College
31The first two prospective witnesses - David Coward and Maher Ghalayini,- are Defendants to this action. The remaining five prospective witnesses are non-parties. While Kevin Weaver was named in the motion before me on December 9, 2022, he is not named as a prospective witness in the December 16, 2022 Notice of Motion and, in oral argument on December 9, 2022, counsel for the Plaintiff advised that he did not really care if he could examine Mr. Weaver.
32It is not clear from the record whether the non-parties have been properly served with the summonses or the December 16, 2022 Notice of Motion. The Plaintiff acknowledges that Dr. Seppy Masoodi has not yet been served, and that the Court cannot order the examination of any non-party who has not been served.
33Given my decision below, it is not relevant whether any of the non-parties were properly served.
34The Plaintiff has already examined three College employees who swore affidavits in relation to the motion for an interlocutory injunction: Pavla Kazda, the Dean of the Automotive Business School at Georgian College, who is a defendant in this action, Bryan Hunt, the Dean of the Hospitality Department of Georgian College, and Candice Niosi, Executive Assistant to Kevin Weaver, the President and CEO of Georgian College. Ms. Kazda and Mr. Hunt both sat on the hiring committee for the impugned position.
35The witness summonses require the persons summonsed to produce all documents and records "pertaining to Dr. Roberts's application for the position of Associate Dean" as well as any records pertaining to discussions with members of the hiring committee, relating to Dr. Roberts' application and "any other documents that are relevant and material to the issues and that you believe will assist the Court in making a determination".
Motion to Quash Summons
36The Plaintiff seeks to examine these witnesses in advance of her motion pursuant to Rule 39.03, which provides:
39.03 (1) Subject to subrule 39.02 (2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.
37The right to examine a witness in advance of a motion will only be permitted where the party requesting the examination can demonstrate that (a) the evidence sought from the witness is relevant to the underlying motion; (b) the witness is able to provide the evidence sought; and (c) the evidence sought from the non-parties is necessary for the motion.
38The onus is on the party seeking to conduct the examination to show on a reasonable evidentiary basis that the examination would be conducted on issues relevant to the pending motion and that the proposed witness is in a position to offer relevant evidence: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 41606 (ON CA), leave to appeal to the S.C.C. refused [2002] S.C.C.A. No. 252 (S.C.C.), at para. 30. See also: PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857, at para. 15.
39The examination must be relevant to issues on the motion. It cannot be used as a general discovery within the action: Payne v. Ontario Human Rights Commission, 2000 5731 (ON CA), at para. 165.
40This is particularly true with respect to non-parties to the action, who are not subject to discovery except under the narrow exceptions set out in Rule 31.10(2) of the Rules of Civil Procedure: Ontario (Attorney General) v. Ballard Estate, 1995 3509 (ON CA)1. A motion for an interlocutory injunction cannot be used to circumvent the normal discovery process mandated in the Rules of Civil Procedure.
41The Plaintiff is also seeking disclosure and production from the non-parties she has summonsed. Orders providing for the disclosure and production of records in the hands of non-parties pursuant to Rule 30.10 are exceptional remedies in the context of civil litigation. Such orders are not routinely granted and require a careful review of the considerations called for under that rule: Regional Municipality of Halton v. Alizadeh, 2021 ONSC 6958, at para. 41; Morse shoe (Canada) Ltd. v. Zellers Inc., 1997 1573 (ON CA), at para. 19; Marshall et al and Estate of Sheldon Gladders, 2014 ONSC 2821, at para. 32.
42When the summons requires the production of documents which is overly broad it warrants an inference that the exercise is a "fishing expedition": Coburn v. Barber et al., 2010 ONSC 3342, at para. 101; Cunha et. al. v. DaCunha, 2022 ONSC 930, at para. 32; The Bank of Nova Scotia v. Grillone, 2022 ONSC 4492, at para. 24.
43Even where the party seeking the examination can satisfy these requirements, a summons may still be quashed where the party resisting the examination can show that it is used for an ulterior or improper purpose, thereby constituting an abuse of process: Ontario Federation of Anglers, at para. 60.
Issues on a Motion for an Interlocutory Injunction
44The summonses in this case relate to a motion for an interlocutory injunction. There are three basic issues on a motion for an interlocutory injunction. These three issues are commonly referred to as the RJR-MacDonald test: "First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits", RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311.
45The parties agree that the proposed examinations can relate only to the first step of the RJR-MacDonald test. There is no suggestion that any of the proposed witnesses will have any evidence relevant to the second or third steps of the RJR-MacDonald test.
46But the parties part company over what the first step should be in this case.
47As a general rule, the first step presents a low threshold. As the Supreme Court observed in RJR-MacDonald:
What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. ...
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
48The Defendants argue that given this low threshold, the Plaintiff does not need to examine all of these witnesses before the motion is heard. The Defendants do not dispute that the Plaintiff can meet this low threshold, and the availability of an interlocutory injunction at this stage will not turn on the first step of the RJR-MacDonald test.
49The Plaintiff argues that the primary relief requested in her motion is an order for a mandatory interlocutory injunction. She is not asking that the College be prevented from hiring an Associate Dean pending the final outcome of this case (although that appears to be her alternative relief claimed), she is asking for the "reconstitution of a fair and unbiased hiring committee in Competition #370-22 that conforms to the requirements of procedural fairness", and she has listed a number of such criteria, including "requiring oversight of the appointment of the hiring committee ...by the Board of Governors..." and "requiring that the hiring committee maintain cameras on during the entire interview", and "an Order that hiring committee members are not allowed to text or communicate with one another during the candidates' interviews".
50Where the Plaintiff seeks a mandatory interlocutory injunction, as opposed to a prohibitive interlocutory injunction, the first test is not the low threshold "serious question to be tried", but the much higher threshold "strong prima facie case" test.
51In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court of Canada stated, at para. 15:
In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant's case at the first stage of the RJR — MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise "put the situation back to what it should be", which is often costly or burdensome for the defendant and which equity has long been reluctant to compel. Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, "the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial". The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR — MacDonald as "extensive review of the merits" at the interlocutory stage. [Citations omitted.]
52The Court explained, at para. 17, that a "strong prima facie case" imposed:
a burden on the applicant to show a case of such merit that it is very likely to succeed at trial. Meaning, that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.
53The Court, at para. 18, summarized the modified RJR - MacDonald test for a mandatory interlocutory injunction as follows:
(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(3) The applicant must show that the balance of convenience favours granting the injunction.
54The Plaintiff argues that the modified RJR - MacDonald test means that she must be in a position to prove her case before seeking a mandatory interlocutory injunction, and this means that the merits of her case are a central issue on the motion for the interlocutory injunction. The Plaintiff has alleged a conspiracy by the Defendants. Conspiracies are, by their very nature, hidden and secretive, and the Plaintiff argues that she will be unable to provide evidence to demonstrate a strong prima facie case unless she can examine all of the parties and non-parties she has summonsed.
Analysis
55If this were a motion for a prohibitive interlocutory injunction, and the "serious issue to be tried" test applied, I would have no difficulty accepting the analysis proposed by the Defendants, and rejecting all of the summonses served as nothing more than an attempt to conduct a general discovery of parties and non-parties in advance of the discovery process provided by Rule 31 of the Rules of Civil Procedure.
56While the application of the "strong prima facie case" test to the mandatory interlocutory injunction sought in this case changes the analysis somewhat, bringing a motion for a mandatory interlocutory injunction cannot expand the Plaintiff's right to discovery beyond what it would be under Rule 31.
57At the end of the day, the Plaintiff's request to examine the non-parties is a fishing expedition based on speculation. The Plaintiff has already examined two of the Defendants to her action, and she was permitted to ask those parties for relevant documents in the possession of the College. There is no evidence that any of the non-parties she has summonsed have any additional documents in their possession, and her request for documents from non-parties is a fishing expedition. Moreover, the number of summonses and the breadth of the material sought from the witnesses supports the Defendants' position that the proposed examinations are fishing expeditions.
58In my view, the Plaintiff has not met her onus of proving that the non-party witnesses she has summonsed are able to provide the evidence sought; speculation and conjecture are not sufficient to meet this requirement.
59That said, I will permit the Plaintiff to examine the two parties who she has summonsed: David Coward, Vice President of Human Resources and Maher Ghalayini, Associate Vice President of Academic, for 1.5 hours and 3 hours respectively, as requested by the Plaintiff. Since these two persons are named as Defendants, I accept that, as Defendants to the action, they are able to provide the evidence sought.
60In this regard, I am guided by the principle of proportionality under Rule 29.2. Even with the modified RJR.-MacDonald test, a motion for an interlocutory injunction should not be permitted to morph into a trial of the action on its merits.
61Consistent with this principle of proportionality, Rule 31.03(1) of the Rules of Civil Procedure permits a party to examine for discovery any party who is adverse in interest only once. A second examination for discovery is permitted only with leave of the Court.
62I am concerned that permitting a party to examine a party who is adverse in interest on a motion for an interlocutory mandatory injunction pursuant to Rule 39.03, and then again as part of the discovery process pursuant to Rule 31, may be used to circumvent the limit imposed by Rule 31.03(1), and lead to a potential abuse of process. Accordingly, if the Plaintiff does examine either Mr. Coward or Mr. Ghalayini for the purposes of this motion, she cannot also examine them for discovery without leave of the Court.
63This principle does not apply to the examination of the Plaintiff, Dr. Roberts, or the examination of the Defendant, Pavla Kazda, since they filed affidavits in support of their respective positions on this motion, and were subject to cross-examination on those affidavits without recourse to Rule 39.03.
Conclusion
64This Court Orders:
The summons to witness to Sandra Quail, Kim Townes, Seppy Masoodi, Angela Lockridge and any other non-party whom the Plaintiff seeks to examine pursuant to Rule 39.03 of the Rules of Civil Procedure, are quashed.
The summons to witness of David Coward and Maher Ghalayini may proceed as per the schedule below. Mr. Coward may be examined for up to 1.5 hours, and Mr. Ghalayini may be examined for up to 3 hours. The examinations may proceed virtually.
The examinations shall be conducted between January 9 and January 11, 2023, unless the parties agree in writing to different dates.
If the Plaintiff does examine David Coward or Maher Ghalayini, she may not conduct examinations for discovery of the party examined without leave of the Court.
65The parties have also agreed to the following timetable:
- The Plaintiff shall file any expert affidavits by January 13, 2023.
- Answers to Undertakings and Refusals due by January 15, 2023.
- Motions re: Undertakings and Refusals and admissibility of affidavits: January 25, 2023.
- Plaintiff's Factum re: interlocutory Injunction: February 3, 2023.
- Defendants' Factum re: interlocutory Injunction: February 10, 2023
- Plaintiff's Reply Factum: February 16, 2023
- Interlocutory Injunction Motion: February 16, 2023.
Costs
66The parties have similar expectations regarding costs for this motion, which took the entire day and was preceded by various court appearances. The Plaintiff claims $13,071 costs, the Defendants claim $14,247.
67There was somewhat mixed success on this motion, although, in my view, this motion was really a step on the road to the motion for an interlocutory injunction. As such, the appropriate costs order in this case is to fix costs at $13,000, payable to whichever party is successful on the motion for an interlocutory injunction.
Justice R.E. Charney
Released: December 28, 2022
Footnotes
- This case is frequently cited as Ontario (Attorney General) v. Ballard, but is officially cited as Ontario (Attorney General) v. Stavro, 1995 3509 (ON CA).