Court File and Parties

COURT FILE NO.: CV-22-00675759-0000 DATE: 2023-01-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MASTROIANNI v. PUSATERI'S LIMITED

BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN

HEARD: October 18, 2022 – by Zoom videoconference

COUNSEL: Robert Taylor, for the moving party/plaintiff James Davis, for the responding party/defendant

E N D O R S E M E N T

Endorsement

Background

[1] This is a motion by the plaintiff in a wrongful dismissal action to compel the corporate defendant to produce the representative selected by the plaintiff for examination for discovery. For the reasons that follow, the motion is granted.

[2] The plaintiff, the former Vice-President of Merchandising with the defendant, had been employed by the defendant for 32 years when he was terminated for cause on December 24, 2021. The cause asserted by the defendant is the alleged theft of approximately $30 worth of seafood salad on the day before the plaintiff’s termination. The plaintiff denies the theft. He pleads that while he was checking out with his personal grocery shopping on the day in question he instructed the defendant’s head cashier, Salome Larios Ampuller (“Salome”), to add a $60.00 deli seafood salad ($30.00 with the plaintiff’s employee discount) to his bill which he had ordered from the deli counter but had not yet picked up. After checking out, the plaintiff went to the deli counter, picked up a seafood salad that was priced at $56.00, and placed it in his cart to take home.

[3] It is undisputed that Salome never charged the plaintiff for the seafood salad. The plaintiff claims he believed at the time that he had been charged per his instructions and that the $30 seafood salad was included in his $340 bill for groceries that day. The defendant denies that the plaintiff asked Salome to add the seafood salad to his bill and pleads that Salome confirmed that the plaintiff did not make such a request. The defendant pleads that the plaintiff engaged in dishonesty and theft and that the dishonesty (the plaintiff’s denial of the theft) continued during the defendant’s investigation.

[4] The plaintiff’s position is that Salome is the central witness in this case as she is the only person who has direct firsthand knowledge of the critical event that led to the plaintiff’s termination for theft. On that basis, the plaintiff advised the defendant that he had selected Salome as the defendant’s representative for discovery. The defendant objected to the selection of Salome as inappropriate on the grounds that:

a) she was at all material times the plaintiff’s subordinate;

b) she played no role in the investigation into the plaintiff’s misconduct, nor the decision to terminate him; and

c) her examination would result in an excessive number of undertakings.

The defendant proposed instead to produce as its discovery representative the Chief Operating Officer of the defendant, Sam Pusateri. The plaintiff served a Notice of Examination for the examination for discovery of Salome. The defendant refused to produce her and the plaintiff obtained a certificate of non-attendance.

The Motion

[5] The plaintiff brings this motion to compel the defendant to produce Salome as its representative for examination for discovery. The defendant opposes the motion on the same grounds on which it objected to Salome’s initial selection by the plaintiff.

[6] Under Rule 31.03(2), the examining party on discovery has a prima facie right to select any officer, director or employee of the opposing corporate party as the representative for examination. The court will not lightly interfere with the examining party's selection. The onus is on the corporation to show that the person selected is inappropriate. [1]

[7] In determining whether to substitute another corporate representative for the person selected, the court should consider the following factors:

a) whether the person selected is sufficiently knowledgeable in relation to the matters in issue;

b) whether it would be oppressive to require the person selected to be examined, for example because it would give rise to an excessive number of undertakings or unnecessarily take the person away from onerous management responsibilities; and

c) whether there would be prejudice to the examining party to be required to examine someone other than the person whom they selected. [2]

[8] The defendant submits that the Salome lacks the requisite knowledge, in part, because she was a subordinate of the defendant. As such, she does not have knowledge of the plaintiff’s employment relationship with the defendant, his duties and responsibilities nor his remuneration. The defendant also argues that Salome has limited knowledge of the investigation into the plaintiff’s conduct and had no involvement in the decision to terminate him. The plaintiff submits that the entire case hinges on whether the theft occurred, which in turn hinges on the exchange between plaintiff and Salome. The plaintiff argues that Salome is the only person other than the plaintiff with any direct knowledge of what was said between them.

[9] Although it is unusual for a plaintiff in a wrongful dismissal case to examine a subordinate employee as the discovery representative of the opposing corporate party, courts have not interfered with an examining party’s selection of a subordinate when there are valid reasons for that selection. [3] In Ciardullo, a plaintiff who had been terminated for cause based on the alleged sexual harassment of a subordinate, selected that subordinate as the representative of the corporate defendant for discovery. On a motion by the plaintiff in that case, Master Petersen ordered the defendant employer to produce the subordinate employee for examination, and that decision was upheld on appeal by Justice Strathy (as he then was). [4]

[10] The defendant in Ciardullo raised many of the same arguments against the selection of the subordinate that were made by the defendant on this motion, including that the subordinate had no knowledge of the nature and history of the plaintiff’s employment relationship with the defendant, of the nature of the defendant employer’s investigation into the allegations of sexual harassment, nor of the deliberations conducted by the defendant employer relating to the plaintiff’s termination. On the appeal, Justice Strathy (as he then was), focused on the reasons for the examining party’s selection:

The prima facie right of the examining party to select the corporate representative to be examined reflects, in part, the right of the examining party to explore the pleaded issues most important to its case. In this case, the plaintiff selected Mrs. K. for examination because it regarded her evidence as being critical to the issue of whether harassment took place. The selection of Mrs. K. is rational, consistent with the purposes of discovery, and was made bona fide. There is no suggestion it was perverse, illogical, vindictive or made for a collateral purpose, such as intimidation.

[11] Justice Strathy went on to find that evidence of Mrs. K (the subordinate employee) went to the heart of the case, holding that she was “clearly sufficiently knowledgeable about the facts surrounding the critical issue of whether she was sexually harassed by the plaintiff.”

[12] The critical issue in the present case is whether the alleged theft occurred. The plaintiff selected Salome as the defendant’s discovery representative because the plaintiff regarded her evidence as being crucial to that issue. I agree with the plaintiff that the evidence of Salome goes to the heart of this case. The parties do not dispute that the plaintiff took the seafood salad nor that he had not been charged for it. The central issue in dispute is whether the plaintiff knew he had not been charged for the salad when he took it. Salome is the only officer, director or employee of the defendant with any direct knowledge of this central issue. I find therefore that she is sufficiently knowledgeable in relation to the matters in issue.

[13] I also find that it would not be oppressive to require Salome to be examined for discovery. I reject the defendant’s submission that the plaintiff chose Salome for the purpose of intimidating her as a witness or to improperly expand his discovery rights. There is no evidence in the record before me to support such a finding. The plaintiff’s choice of Salome is bona fide and consistent with the purposes of discovery.

[14] While the examination of Salome would likely result in a greater number of undertakings than an examination of Sam Pusateri, that does not does not make Salome an inappropriate choice. The selected representative need only be sufficiently knowledgeable in the context of the case. The examining party is not required to select the most knowledgeable representative. [5] Further, as noted in Ciardullo, undertakings are a “fact of life in corporate discovery”. [6] This is especially true in employment litigation involving large employers where no one corporate representative could be expected to have direct knowledge of all of the relevant facts relating to a terminated employee’s conduct and employment relationship. Where there are gaps in the representative’s knowledge, it is often possible to mitigate the inconvenience of the resulting undertakings by structuring the discovery on these issues in an efficient and cost-effective way, such as through written questions and answers. I see no reason why such mitigation steps could not be taken in this case.

[15] Finally, I find that it would prejudice the plaintiff to require him to discover a representative other than Salome. The plaintiff is entitled to test the evidence against him prior to trial. It would be unfair to require the plaintiff to attempt to obtain evidence and admissions on the central issue of whether the theft occurred from a witness who has no first-hand knowledge of that event. [7]

[16] Accordingly, I find that the defendant has not discharged its onus of demonstrating that Salome is an inappropriate representative of the defendant for discovery.

Disposition

[17] The plaintiff’s motion is granted. The defendant shall produce Salome Larios Ampuller to attend for Examination for Discovery as representative of the defendant on a date and time and at a place to be agreed upon by counsel, or, failing such agreement, pursuant to the Rules of Civil Procedure.

Costs

[18] The plaintiff was entirely successful on the motion and should have his costs. The plaintiff filed a costs outline seeking $24,513.52 on a partial indemnity scale, based on 53.8 hours of docketed time. The defendant’s costs outline puts its partial indemnity costs at $8,483.39, based on 40.7 hours of docketed time. The defendant submits that the costs claimed by the plaintiff, at almost three times the defendant’s costs, are excessive. I disagree.

[19] The hours expended by both sides are in the same range, with slightly more time docketed by plaintiff’s counsel, as might be expected of the moving party on a motion. The primary reason for the discrepancy between the amounts claimed is the relative seniority of counsel. Mr. Taylor who argued the motion for the plaintiff and docketed the bulk of the time, was called to the bar in 1978 and claims a partial indemnity rate of $540/hr. Conversely, Mr. Davis, who argued for the defendant and docketed most of the time in its costs outline, is a 2019 call with a claimed partial indemnity rate of $180/hr.

[20] In my view, the plaintiff’s use of senior counsel was reasonable given the importance of this motion to the plaintiff’s case. I also find that Mr. Taylor’s claimed partial indemnity rate is reasonable given his year of call. The partial indemnity costs claimed by the plaintiff are therefore within the reasonable expectations of the parties.

[21] The defendant shall pay to the plaintiff his costs of the motion, fixed at $24,513.52 (exclusive of HST), payable within 30 days of the release of this endorsement.

D. Michael Brown, Associate Judge DATE: January 26, 2023