Court File and Parties

COURT FILE NO.: CV-19-00618307-0000 DATE: 2023-07-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KRISTA SAARINEN, plaintiff AND: ROGERS COMMUNICATIONS LTD., defendant

BEFORE: Associate Justice R. Frank

COUNSEL: S. Hodge for the plaintiff / moving party E. Matei for the defendant / responding party

HEARD: May 30, 2023

Endorsement

1The plaintiff commenced this action alleging wrongful dismissal. The defendant contests liability and alleges just cause for the termination. The quantum of damages is also contested.

2On this motion, the plaintiff seeks an order compelling the defendant to answer two refusals given at the examination for discovery of defendant’s representative, Liselle Devas, on July 16, 2020, and by way of follow-up questions responded to on October 11, 2022 and January 5, 2023.

3The disputed questions are as follows:

Question 113 to the examination for discovery of Liselle Devas, July 16, 2020:

Question: To produce the termination packages of all employees (names of said employees may be redacted to only provide first initials) who had more than 25 years of service and were terminated without cause by the Defendant during the period of January, 2017 to December, 2019.

Answer: “Refused, termination packages are subject to confidentiality provisions.”

Follow-up question #14 (responded to October 11, 2022 and January 5, 2023):

Question: To advise of the Defendant’s Human Resources department’s practice in determining in January, 2019 what termination packages would be offered to employees who were terminated without cause and did not have a written employment agreement, who made said determination, and whether there were any general guidelines, written or otherwise used regarding:

i. Length of notice; ii. Claw-back use; iii. Short-term incentive inclusion; iv. Long-term incentive inclusion; v. Pension; vi. Other benefits; vii. Outplacement; viii. Legal fees; and/or ix. Other.

Answer: “Plaintiff was terminated for cause. Practices of HR for termination packages when employees are terminated without cause is irrelevant. Refused”

4In a subsequent response, the defendant stated as follows with respect to the disputed refusals: “2. This was addressed in the previous followup [sic] questions dated October 11, 2022. The Plaintiff was terminated for cause. what [sic] Rogers’ HR practice is in without cause termination is irrelevant to [sic].”

5Thus, on discovery, the defendant refused to answer the disputed questions on the basis of relevance. As outlined below, the defendant now asserts that, in addition to being irrelevant, the questions are refused on the basis of privilege.

Principles regarding relevance on an examination for discovery

6The proper scope of questioning on an examination for discovery is summarised as follows:

129 The case law has developed the following principles about the scope of the questioning on an examination for discovery:

• 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), 4 O.W.N. 817 (Ont. S.C.).
• 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 Canada Ltd. (1979), 11 B.C.L.R. 142 (B.C. C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 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), 71 O.R. (2d) 238 (Ont. H.C.); Air Canada v. McDonnell Douglas Corp. (1995), 22 O.R. (3d) 140 (Ont. Master), aff’d , 23 O.R. (3d) 156 (Ont. 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), 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) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995) 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 (Ont. Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269 (Ont. 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 (Ont. 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 (Ont. C.A.); Rubinoff v. Newton (1966), [1967] 1 O.R. 402 (Ont. H.C.); Kay v. Posluns (1989).
• 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 Band v. Canada (Attorney General) (2000), 48 O.R. (3d) 377 (Ont. Div. Ct.). [1]

7A question “which may lead to evidence that could legitimately influence the judge hearing the motion should be allowed.” [2] However, even if a question is deemed relevant, the Court must consider the proportionality principles articulated in Rule 29.2.03. [3]

Are the requested documents and information relevant?

8Rogers submits that the questions are not relevant because the plaintiff was terminated for cause. I do not accept this submission as a proper basis for refusing to answer the disputed questions. In the present action, the plaintiff pleads that there was no just cause for her termination. The assertion by the defendant of a just cause defence cannot per se be a bar to discovery questions that are relevant to the assessment of damages based on the plaintiff’s pleading.

9The defendant also asserts that the information is irrelevant because, broadly speaking, documents and information relating to settlement offers are irrelevant to a determination of an employee’s common law entitlement pursuant to the Bardal factors. [4] The defendant argues that even if the court finds that there was no just cause for dismissal: (1) the common law notice entitlements on termination are an individualized assessment based on the plaintiff’s individualized Bardal factors; and (2) what the defendant may have unilaterally offered to other terminated employees is irrelevant to the assessment of the plaintiff’s rights based on the Bardal factors.

10It is well-established that in determining the common law entitlement of a dismissed employee, the Court applies the Bardal factors on a case-by-case basis. [5] Thus, a termination package offered to an employee or termination packages offered to other employees would ordinarily not be relevant to the determination of the applicable reasonable notice period for the plaintiff under the common law, which is based on the Bardal factors. [6] As a result, if the plaintiff’s claim were based solely on a common law entitlement, the requested information and documents would not be relevant.

11However, in the circumstances of this action, the plaintiff asserts a claim that goes beyond the common law notice entitlement. Specifically, in the amended statement of claim, including paragraphs 12, 18 and 31, the plaintiff alleges that she was wrongfully dismissed and that, based on the implied terms of her employment contract and the defendant’s policies and/or practices in place, she was entitled to a termination package that included 24 months compensation with no mitigation requirements. The defendant consented to the amendments to the statement of claim that include these pleadings and joined issue with the plaintiff on this point. For example, at paragraph 22 of the amended statement of defence, the defendant denies the implied term alleged by the plaintiff that she was entitled to 24 months compensation and that she had no duty to mitigate.

12In light of the pleadings in this action, the disputed questions are relevant. If the court finds that there was no just cause for the plaintiff’s dismissal, the termination packages provided to similarly situated employees and the defendant’s policy and/or practice determining termination packages will be relevant to the determination of the plaintiff’s damages. As there is no evidence that the requested information and documentation would offend the principles of proportionality, the questions should be answered, subject to any privilege considerations, as outlined below.

Are the requested documents and information privileged?

13Although not asserted by the defendant until it delivered its responding factum, the defendant now argues that the requested information and documents are without prejudice communications and information that is protected by settlement privilege. In support of its position, the defendant relies on the general principles of settlement privilege, including that settlement privilege is a class privilege that promotes settlements. [7] It also relies on case law in which the court has held that termination packages offered by employers and settlements reached with former employees are privileged. [8] It argues that if without prejudice offers do not remain privileged, and if such offers are producible to third parties in future actions, employers would be much less willing to make compromises in offers to terminated employees. The defendant submits that this will decrease the likelihood of employers concluding matters without litigated outcomes.

14I accept that there are circumstances in which communications between an employer and an employee in the context of termination are covered by settlement privilege. This is consistent with the principles regarding settlement privilege outlined by the Supreme Court of Canada in Sable. However, the question to be determined on this motion is whether the specific communications and information the plaintiff seeks in this action are protected by settlement privilege.

15In the cases relied on by the defendant, the court had evidence before it that the specific communications in issue were made in furtherance of settlement and on a without prejudice basis. For example, in Gu, the court noted that “[the defendant] deposes by way of responding affidavit that this confidential settlement information is all privileged and was only known to the plaintiff as part of her employment duties as Director, Finance and Administration.” [9] Similarly, in Mazinani, the employer’s evidence was that “the [documents in issue] were expressly intended to be privileged and therefore not discoverable in any litigation that might ensue in the absence of a settlement.” [10] For reasons that included this type of evidence, the court concluded in each of those cases that the sought‑after information was protected by settlement privilege. In Ramos, the court considered the parties’ evidence and reviewed the documents in issue in order to determine whether a settlement offer was made on a without prejudice basis. [11]

16In this case, when the disputed questions were asked at discovery or as follow‑up questions, the defendant refused to answer them on the basis of relevance. The defendant did not raise an objection based on privilege until it served its responding factum on this motion. Further, it chose not to file any evidence to support its belated assertion that the sought‑after documents and information include without prejudice communications and are subject to settlement privilege. As a result, there is no evidence in the record asserting that the sought-after communications and information are privileged. Instead, the defendant asks the court to infer that any communications and offers it made to terminated employees were per se made on a without prejudice basis and that, therefore, they are all privileged.

17Although the Supreme Court has made it clear that settlement privilege is a class privilege, I do not accept the defendant’s submission that this means that every communication between an employer and an employee in the context of termination must be privileged. Had the defendant put forward evidence asserting privilege as a basis for its objection, the plaintiff would have been able to determine whether to lead evidence on this issue or test the defendant’s evidence through cross‑examination, and the court would have been able to consider that evidence in assessing whether settlement privilege applies to specific documents or information. However, in view of the record in this case, in which the defendant failed to lead any evidence in support of its assertion that the sought‑after documents and information include without prejudice communications, I am not able to find that settlement privilege applies.

18The defendant raises an in terrorem argument that if the court does not find that the sought‑after communications and information are protected by settlement privilege this will open the floodgates to attacks on that class privilege. I do not agree. The finding in this case is based on the fact that, unlike the cases relied on by the defendant, the defendant chose not to file any evidence asserting that the communications and information in issue are privileged.

19Having concluded that the defendant has not established that the documents and information in issue are privileged, I need not address the plaintiff’s alternative argument that privilege was waived.

Disposition and costs

20For the reasons outlined above, the plaintiff’s motion is granted.

21As the plaintiff was successful on this motion, I find that she is entitled to her costs on a partial indemnity basis. The plaintiff’s costs outline quantifies the defendant’s partial indemnity costs in the amount of $6,540.67, inclusive of disbursements and taxes. The defendant’s costs outline quantifies the defendant’s partial indemnity costs in the amount of $6,964.87.

22Having heard the parties’ costs submissions and reviewed their respective costs outlines, and considering all the relevant factors set out in Rule 57.01(1), I find that it is fair and reasonable in the circumstances, and within the reasonable expectation of the unsuccessful party, for the defendant to pay the plaintiff costs fixed in the amount of $6,540.67 inclusive of disbursements and taxes within 30 days.

23I order as follows:

1. The defendant shall answer the questions listed in Schedule “A” to this endorsement within 30 days of this order; and
2. The defendant shall pay the plaintiff costs of this motion fixed in the amount of $6,540.67, inclusive of disbursements and taxes, within 30 days of this order.

24I have reviewed the draft order filed by the plaintiff and amended it reflect the above terms. Order to go as amended electronically and signed by me.

R. Frank Associate J. Date: July 25, 2023

SCHEDULE “A”

a) To produce the termination packages of all employees (names of said employees may be redacted so as to only provide the first initials) who had more than 25 years of service and were terminated without cause by the Defendant during the period of January, 2017 to December, 2019; and

b) To advise of the Defendant’s Human Resources department’s practice in determining in January, 2019 what termination packages would be offered to employees who were terminated without cause and did not have a written employment agreement, who made said determination, and whether there were any general guidelines, written or otherwise, used regarding:

1. Length of notice;
2. Claw-back use;
3. Short-term incentive inclusion;
4. Long-term incentive inclusion;
5. Pension;
6. Other benefits;
7. Outplacement;
8. Legal fees; and/or
9. Other.