Court File and Parties

COURT FILE NO.: CV-19-619734 DATE: February 22, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sylvia Asa v. University Health Network

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: Malcolm Woodside for Sylvia Asa; Paul Fruitman and Aly Haji for the University Health Network.

HEARD: February 21, 2023.

ENDORSEMENT

[1] This is a motion by Sylvia Asa, a physician, seeking leave to have an additional 7 hours to discover the representative of the University Health Network (“UHN”), Catherine Wang. The plaintiff has already spent 5.5 hours in this discovery. Both parties agree that Dr. Asa is entitled to an additional 1.5 hours. UHN is prepared to give her an additional 3 hours. Dr. Asa wants an additional 7 hours.

[2] The fact that both sides agreed that Dr. Asa could examine Ms. Wang for at least 4.5 more hours left me wondering why the discovery had not been continued for that time, with the plaintiff deciding at the end of that time as to whether in fact further time was necessary and reserving the right to bring this motion at that time. That course of action was not taken.

[3] The underlying action is an employment law case concerning wrongful termination. Dr. Asa’s employment with UHN was terminated for no cause. The stated reason was budget considerations. Dr. Asa sued UHN for $1.75 million in damages, $1.25 million of which was for compensatory damages and $500,000 for damages due to bad faith and age and gender discrimination. UHN has already paid Dr. Asa some money.

[4] Having reviewed the written submissions and the argument and the factors to be considered under Rule 31.05.1(2) of the Rules of Civil Procedure, I have decided to grant Dr. Asa 4.5 hours in addition to the 1.5 hours she is entitled to under the Rules. This means an additional 6 hours of discovery for Ms. Wang, which should fit into one additional day of discovery.

[5] The following are my reasons for this decision:

a) Conduct: The bulk of Dr. Asa’s argument was that UHN had not properly pleaded in response to her statement of claim. In particular, Mr. Woodside argued that UHN had denied virtually all allegations of fact, and that this caused Mr. Colson, counsel for Ms. Asa, to spend half of the initial 5.5 hours reviewing the statement of claim. He pointed out that this process caused a significant number of admissions and that Mr. Colson was not able to get into the productions in much detail. Mr. Fruitman and Mr. Haji argued that UHN had properly pleaded. They argued that UHN had pleaded a different version of the facts, thereby justifying the sweeping denials in the statement of defence.

I agree with Mr. Woodside. There should have been more precision to the UHN pleading. In the era of time-limited discovery both parties must work hard at the pleading stage to take issues off the table.

b) Complexity: Mr. Fruitman argued that this case was no different than most other employment law cases and was not complicated. He pointed out that the defendant had taken less than 3 hours to examine Dr. Asa.

I am not experienced in this area. I see that Dr. Asa had raised issues of discrimination leading to a claim for non-compensatory damages. The treatment UHN gave to other employees has been raised by the defendant in its statement of defence. This will involve an examination of the pattern of UHN’s conduct. That is sufficient complexity to justify some leeway in favour of the plaintiff.

There was argument about whether the 508 documents produced by both parties justified a greater amount of discovery time. I agree with UHN that it does not. Actions with greater quantity of documentation have led to satisfactory discoveries within the seven hours granted by the Rules.

c) Amount at issue: I agree with Mr. Haji that the amount claimed by Dr. Asa did not justify an overly lengthy discovery. Yet, this is a real claim that, for a single person such as Dr. Asa, could be meaningful. Also the damages claimed concerning the issues of discrimination are not insignificant and could require some time to review.

d) Financial positions: Mr. Woodside argued that the financial positions of the parties must be considered. Dr. Asa is indeed a single person who is up against a large public body that employs thousands of people, UHN. Yet, as Mr. Haji pointed out, Dr. Asa is not without means to sustain this litigation. This is a minor factor.

e) Amount of time required: Mr. Woodside argued that Mr. Colson had minimal time to review the documents because of his lengthy pleading review. I have already commented that this justified some leeway in favour of the plaintiff.

f) Interests of justice: There was considerable argument about the application of proportionality and the modern approach to discoveries. In my view, these factors militate against this entire motion. It would have been more consistent with the modern approach to discovery to have the discovery proceed using the 4.5 hours suggested by UHN, but allowing the plaintiff the right to bring this motion if needed at the end of that time.

This approach would have required that Mr. Colson exercise diligence, discernment and care in his preparation. At the end of that 4.5 hours Mr. Colson could have determined whether more time was actually needed. If he determined that more time was needed, this motion could have been brought at that point. On the other hand, the motion may have been avoided had he determined that no more time was needed.

[6] For these reasons, I reiterate that I grant the plaintiff leave to have an additional 4.5 hours of discovery on top of the 1.5 hours of further time allowed by the Rules.

[7] Concerning costs, I have now received and reviewed the costs outlines of the parties for this motion. They show that the plaintiff spent 38.9 hours on this motion, and that the defendant spent 28.8 hours. The plaintiff’s costs outline shows a figure of $10,119.15. The defendant’s costs outline shows $15,033.29 in partial indemnity costs, $22,549.94 in substantial indemnity costs and $25,055.49 in actual costs. All over four hours of discovery time. Truly astounding.

[8] I am not prepared to award UHN costs because the plaintiff succeeded to some extent. But I am also not prepared to award the plaintiff costs. I was advised that Dr. Asa made no attempt to negotiate a resolution of this motion. Obviously, the plaintiff did not even consider the practical approach I outlined in these reasons. In my view, the plaintiff does not deserve costs. I, therefore, award no costs.

DATE: February 22, 2023 ASSOCIATE JUSTICE C. WIEBE