Court File and Parties

COURT FILE NO.: CV-21-665473 DATE: October 27, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marwan Dalle v. Cisco Systems Canada Inc.;

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: Natalie C. MacDonald and Jordan Atkinson for Marwan Dalle; Edward Majewski and Gloria Ilunga for Cisco Systems Canada Inc. (“Cisco”);

HEARD: September 28, 2023.

REASONS FOR DECISION

[1] There are two motions to be determined. There is a motion by Marwan Dalle seeking an order requiring that Paul Verkuyl, the representative at discovery of Cisco, give better answers to certain undertakings he gave at discovery, answer questions he refused to answer at discovery and reattend at his examination for discovery at Cisco’s expense to answer follow-up questions arising from the answers to these questions. The other motion is by Cisco seeking an order that Mr. Dalle give better answers to certain undertakings he gave at discovery, answer questions he refused to answer at discovery and reattend at his examination for discovery at his expense to answer follow-up questions arising from the answers to these questions.

[2] The underlying action is a wrongful dismissal action. Mr. Dalle was a senior technical account manager at Microsoft QSTP LLC in Qatar in July, 2019. He worked for the Microsoft Corporation in other countries for 12 years prior to moving to Qatar in July, 2018. He alleges that representatives of Cisco approached him in July and August, 2019 and induced him to take a position with Cisco. He took that position and in September, 2019 relocated to Canada. His position was Services Sales Specialist for the TD Canada Trust and Royal Bank of Canada accounts. In March, 2020 Mr. Verkuyl, Mr. Dalle’s superior, removed Mr. Dalle from the RDC account. On October 15, 2020, Mr. Verkuyl informed Mr. Dalle that his employment was terminated with two months written notice stating that the cause was corporate restructuring. After a few months Mr. Dalle got alternative employment with Microsoft in Canada at lesser pay.

[3] On July 13, 2021 Mr. Dalle sued Cisco claiming damages for compensation in lieu of 20 months of notice, moral damages due to alleged bad faith conduct, damages due to alleged discrimination and other damages. Cisco defended this action. There were productions. Mr. Verkuyl was examined for discovery on November 17, 2022. Mr. Dalle was examined for discovery on November 18, 2022. Both gave undertakings and refusals.

[4] On March 27, 2023 I was assigned these motions. I convened a case conference that took place on April 28, 2023. I set a schedule for these motions and encouraged the parties to resolve the issues. The motions were argued as long motions on September 28, 2023.

[5] The following points need to be made first. The central issue on these motion is relevance:

• The Court of Appeal R. v. Pilon, 2009 ONCA 248 in paragraph 33 stated the following about relevance: “Evidence is relevant if, as a matter of common sense and human experience, it makes the existence of a fact in issue more or less likely’;
• The facts in issue are determined primarily by the pleadings; see Ontario v. Rothmans Inc., 2011 ONSC 2504 at paragraph 129;
• The discovery must be focused on the relevant issues and not be speculative; Tanner v. McIlveen Estate at paragraph 22;
• Proportionality must always be kept in mind; see Fontaine v Canada (Attorney General), 2015 ONSC 3185 at paragraph 19.

I will apply these core principles to these motions.

A. DALLE MOTION

[6] The Dalle motion in end concerned only Mr. Verkuyl’s refusals at discovery. I will deal with them as they were argued, and I will refer to the questions in accordance with the undertakings and refusals chart filed with the Notice of Motion.

a.1) Cisco refusals 1 and 4:

[7] There was a critical email Mr. Verkuyl sent to Mr. Dalle on August 26, 2019 as it concerned what Cisco was prepared to offer Mr. Dalle as terms of his employment. In this email, Mr. Verkuyl stated: “Hopefully, the higher TTC and upside offset your asks.” In refusal 1, Mr. Verkuyl was asked what he meant by “hopefully” in his email of August 26, 2019. The question was refused because it was allegedly unfair. It is not unfair and must be answered. It concerns the exact meaning Mr. Verkuyl gave to the words in this critical offer email, which is relevant.

[8] In oral argument, Mr. Majewski argued that this question and many others that were refused by Mr. Verkuyl concerned constructive dismissal which he said was not expressly pleaded and were rightfully refused as a result. He made the same argument about refusals 2, 3, 16, 17, 19, 20, 21 and 22. As Ms. MacDonald pointed out, this was a position that Mr. Majewski raised for the first time in oral argument. It was not made at discovery or in the undertakings and refusals chart.

[9] Ms. MacDonald pointed out that constructive dismissal was pleaded by Mr. Dalle throughout the statement of claim, particularly in paragraph 130. In this paragraph, Mr. Dalle summarized his case as turning on issues of inducement, changes in employment conditions, changes in commissions, discrimination, refusal to return investments and misrepresentation as to termination and other matters. She argued that these pleaded facts amounted to a pleading of constructive dismissal. I accept Ms. MacDonald’s argument. These pleaded facts are sufficient to form a case of constructive dismissal. I was given no authority for the proposition that constructive dismissal must be expressly pleaded. Therefore, I reject Mr. Majewski’s argument. I also note that Mr. Dalle has made claims of bad faith and moral damages which, as Ms. MacDonald pointed out, put this case outside the realm of the usual wrongful dismissal case.

[10] In response to Mr. Verkuyl’s email of August 26, 2019, Mr. Dalle emailed the following: “No need to delay then. I’ll sign the offer as it stands.” In refusal 4, Mr. Verkuyl was asked what he understood by Mr. Dalle’s response. The question was refused because Mr. Majewski said that it had been answered in an earlier exchange, and because it asked Mr. Verkuyl to read Mr. Dalle’s mind. The earlier exchange did not answer this question exactly and the question does not ask Mr. Verkuyl to read Mr. Dalle’s mind. It concerns what Mr. Verkuyl understood by Mr. Dalle’s response to Mr. Verkuyl’s critical offer email. This question is relevant to the issue of the terms and conditions of the employment contract, and must be answered.

a.2) Cisco refusals 2, 3 and 20:

[11] These refusals pertain to the production of documentation concerning the deal Cisco reached with TD on September 24, 2020, including the production of all schedules that were attached to the contract and the documentation that supported the goal of $2.2 million CAD in TD bookings for Mr. Dalle. At discovery these were refused on the basis of relevance.

[12] This deal was done before Mr. Dalle’s employment was terminated. In my view, these questions concern the clarification of Mr. Dalle’s entitlement to commission and to what Cisco called the “Total Target Compensation,” namely “TTC.” They concern the damages claim, are relevant and must be answered.

a.3) Cisco refusals 5, 6, 7, 8 and 9

[13] These refusals concern the disclosure as to whether the team responsible for the TD and RDC accounts at Cisco attended a Cisco global event in Miami in 2019 celebrating the overachievement of their sales goals, and as to the identity of those individuals, and as to whether they won this sales championship and as to what they needed to achieve against quota to get this award. These questions were refused on the grounds of relevance. The plaintiff asserts that this evidence is relevant to the issue of the inducement given to Mr. Dalle.

[14] I note that the plaintiff’s statement of claim alleges in paragraphs 27 and 28 that Mr. Verkuyl advised Mr. Dalle during the negotiation of the employment position that the team responsible for the TD and RBC accounts had recently been celebrated at a Cisco sponsored global event for their overachievement compared to other teams. It is alleged that this representation formed a part of Cisco’s inducement of Mr. Dalle, namely that by becoming involved with the TD and RBC accounts Mr. Dalle would gain a lucrative and prestigious position. The veracity of those statements is, in my view, in issue. If these representations were made and were not accurate, Mr. Dalle’s claim of bad faith and for moral damages will be enhanced. These questions relate to the veracity of the alleged inducement statements made by Mr. Verkuyl. Therefore, I find that these questions must be answered.

a.4) Cisco refusals 10, 11 and 12

[15] Refusals 10 and 11 concern questions about Mr. Dalle’s replacement, one Farouk Ganai. It is pleaded in the statement of claim that Mr. Dalle was told by Cisco that his contract termination was due to corporate restructuring. It is also alleged that Cisco then restructured Mr. Dalle’s compensation arrangement to his disadvantage. It is alleged that the corporate restructuring representation was not accurate and that the real reason was the replacement by Mr. Ganai. The questions concerned the disclosure of Mr Ganai’s employment contract and his earning statements for 20 months after his hiring in October, 2020. Refusal 12 concerned the question about how many other employees were let go during the alleged corporate restructuring.

[16] All of these questions were refused on the basis of relevance. In oral argument Mr. Majewski argued that the termination by Cisco was without cause and with two months written notice, thereby making these questions about an ulterior Cisco motive irrelevant.

[17] I do not agree with Mr. Majewski. Again, the veracity of Cisco’s representations about corporate restructuring are in issue concerning the Dalle’s claims of bad faith and moral damages. Furthermore, what Mr. Ganai earned for the alleged period of Mr. Dalle’s proper notice period is relevant to his damages claim. These questions are therefore relevant and must be answered.

a.5) Cisco refusals 13, 14, 15, 16 and 17

[18] These refusals concern Mr. Dalle’s performance. Refusal 13 concerned a question about the performance of the other members of the team dealing with the TD account. Refusal 14 concerned a question as to which of these others achieved the levels of sales Mr. Dalle achieved. Refusal 15 concerned a question about the disclosure of Mr. Ganai’s sales attainments for the 20 months following October 15, 2020. Refusal 16 concerned a question about the disclosure of the Salesforce documents for RBC and TD during the course of Mr. Dalle’s employment. Salesforce was a Cisco means of tracking sales performance. Refusal 17 concerned a question for the production of information relating to TD and RBC business at Cisco, both new and renewal, that was generated for the 20 months following October 15, 2020.

[19] These questions were denied on the grounds of irrelevance. Mr. Majewski argued that, as the termination was without cause, these questions were not relevant. However, Mr. Verkuyl revealed at discovery that Mr. Dalle’s performance on the RBC and TD accounts were concerns for Cisco. This evidence suggests that unsatisfactory performance was a factor in Mr. Dalle’s demotion from the RBC account (claimed as constructive dismissal) and eventual actual dismissal. As a result, these questions are relevant to the question of the veracity of Cisco’s representation to Mr. Dalle that his employment termination was due to a corporate restructuring. It may have been due to an undisclosed dissatisfaction with Mr. Dalle’s performance.

[20] This all bears on the Dalle bad faith and moral damages claims. The questions about Mr. Ganai’s attainments and the Salesforce records for the alleged proper notice period are also relevant to Mr. Dalle’s damage claim. These questions must be answered.

a.6) Cisco refusal 18

[21] This refusal concerns the disclosure of the names and addresses of Cisco employees who were named throughout the statement of claim – Remo Reale, Victor Wu, Laura Drummond, Karim Moustafa and Jeff Martin. Cisco has simply refused to disclose this information.

[22] Rule 31.06(2) of the Rules of Civil Procedure requires that a party disclose the names and addresses of persons who might reasonably have knowledge of the facts at issue in the case. This question was refused without explanation. There was no basis for the refusal. This question must be answered.

a.7) Cisco refusal 19

[23] This refusal concerns that disclosure of the goal sheet for Joanne Haywood for the period, September, 2019 to March, 2020. Ms. Haywood was the one who replaced Mr. Dalle on the RBC account in March, 2020. Mr. Dalle explicitly alleges in the undertakings and refusal chart that losing the RBC account was constructive dismissal. He pleads that Cisco advised him that the move was due to the business slowdowns caused by the pandemic. At discovery, Mr. Verkuyl suggested it was a decision made by Mr. Dalle himself.

[24] The veracity of the pleaded Cisco representation is again at issue, namely whether in fact there was a business slowdown that justified removing the RBC account from Mr. Dalle and elevating Ms. Haywood to that position. It is undisputed that these goal sheets will help show Ms. Haywood’s performance, what Cisco intended her to do, and why she got the RBC account. This all relates to the claims of bad faith and moral damages. This question must be answered.

a.8) Cisco refusals 21 and 22

[25] These refusals concern commission Mr. Dalle earned and was not paid. Refusal 21 concerns the production of any and all records pertaining to the commissions Mr. Dalle earned from the commencement of his employment to the end of the alleged 20 month notice period, including goal sheets, goal incentive attainment charts, commission charts and booking charts. Refusal 22 concerns the disclosure of the Cisco sales records on accounts serviced by Mr. Dalle, including the RBC and TD accounts.

[26] In the undertakings and refusals chart Cisco stated that it relied upon a spreadsheet showing Mr. Ganai’s attainment in 2021. I was not shown this document. Ms. McDonald described this document as containing a general commission breakdown for the period January 24, 2021 to January 29, 2022 but without an allocation to clients. As such, she argued it is not responsive to the questions asked. Based on what was shown to me, I agree. These questions concern Mr. Dalle’s damage claim and must be answered in detail and with clarity.

a.9) Reattendance

[27] Mr. Dalle wants an order that Mr. Verkuyl retain at his discovery to answer further questions arising from answers he gave to undertakings, questions taken under advisement and refusals. There was no opposition to this order. I, therefore, order that this be done once all the questions now ordered to be answered are answered. The time limit on this further discovery is 3.5 hours.

[28] The motion record also seeks an order that the reattendance be at the expense of Cisco. I have decided that both deponents reattend to answer follow up questions, and that the costs of these reattendances be reserved to be determined by the trial judge in light of the result. I do this in light of the fact that the undertakings given by both deponents probably would have required a reattendance in any event without a costs order. In any event, these costs should not be great as the further discoveries will again be virtual.

B. CISCO MOTION

[29] The Cisco motion concerns two answers Mr. Dalle gave to two discovery undertakings he gave, and seven refusals that in argument were grouped into four groups. I will deal with these accordingly.

b.1) Dalle undertaking 1

[30] In this undertaking Mr. Dalle undertook to do his best to disclose information about a raise he would have received from his previous employer, Microsoft Qatar, had he remained there, and the reason for it if that reason is in the information. This is relevant to the issue of the inducement Mr. Dalle alleges he was given by Cisco to join that company.

[31] In his answer in the undertakings and refusals chart, Mr. Dalle stated that he had done his best to locate this information and that the most he could provide was what was already produced at Tab 19 of his affidavit of documents. Ms. MacDonald stated in argument that Mr. Dalle made inquiries of Microsoft’s human resources department and that there are no documents in its performance file about this raise. This undertaking is answered.

b.2) Dalle undertaking 2

[32] This undertaking concerns the disclosure of the names of the individuals at Cisco that Mr. Dalle alleges were the perpetrators of bad faith towards him. He answered, Mr. Verkuyl and Remo Reale and other persons in the human resources department. Mr. Majewski wanted specific other names, but Ms. MacDonald confirmed that Mr. Dalle does not know these other names. I find that this undertaking is answered.

b.3) Dalle refusals 1 and 2

[33] These questions concern what Mr. Dalle says he would have needed in compensation to relocate from Kuwait to Canada in 2017 to accept the customer service role he discussed with Cisco at that time. Initially, Mr. Dalle refused to answer stating that these questions are speculative since he was never offered the position.

[34] Mr. Dalle then answered stating that he would have needed exactly what Mr. Verkuyl offered in his email of August 26, 2019. Mr. Majewski argued that this answer was inadequate as the position discussed in 2019 was a different position from the one discussed in 2017. These questions, it seems, concern the credibility of what Mr. Dalle says he required as an inducement to relocate in 2019. They have been answered.

b.4) Dalle refusals 4 and 5

[35] These questions concern the complete disclosure of Mr. Dalle’s personnel files for his employment in Microsoft Kuwait and Qatar. Mr. Majewski justified this question as being relevant to the issue of inducement, as Mr. Dalle alleged his previous employment was secure. The question was originally refused on the grounds of relevance.

[36] Mr. Dalle then in July, 2023 disclosed his “connects” (ie. performance evaluations) while working with Microsoft Qatar. He also disclosed the only document he had from Microsoft Kuwait concerning his level increase in compensation. He has also made a request of Microsoft for his personnel files. Under cover of a letter from Ms. MacDonald dated September 22, 2023, Mr. Dalle disclosed what he received from Microsoft. I find that these questions have been answered.

b.5) Dalle refusals 8 and 9

[37] These questions concern the claim Mr. Dalle is making in damages for $30,000 USD of Microsoft stock awards that would have vested had Mr. Dalle remained employed by Microsoft until September, 2019, when he joined Cisco. Mr. Dalle was asked to produce the stock agreement, the number of shares involved and any documentation about the stock awards. Mr. Dalle said he did not have access to his Microsoft stock account and could not answer the question. He said that asking Microsoft for this documentation was “onerous” as Microsoft is not involved in this litigation.

[38] Nevertheless, Mr. Dalle eventually made the request of Microsoft and on September 22, 2023 disclosed the documents that were produced by Microsoft. Mr. Dalle also searched for documents about the stock agreement in his possession and could not find any, which Ms. MacDonald also confirmed to Mr. Majewski in her letter of September 22, 2023. I find that these questions have been answered.

b.6) Dalle refusal 11

[39] This refusal concerned the production of documents regarding the negotiation Mr. Dalle had with Microsoft that led to his employment there in February or March, 2021. That question was taken under advisement.

[40] Mr. Dalle eventually stated that he interviewed with Microsoft Dubai and could not get a job there as Microsoft Dubai was not hiring persons who were not already located there due to the pandemic. He disclosed correspondence he had with one Jack Cowett in this regard. He also disclosed confirmation from the Microsoft Action Centre about his current position.

[41] There was then the disclosure of the employment documents Mr. Dalle received from Microsoft under cover of Ms. MacDonald letter of September 22, 2023. The letter indicates that the employment contracts Mr. Dalle had and has with Microsoft Kuwait, Qatar and Canada were enclosed.

[42] Mr. Majewski complained that these documents did not deal with compensation. Whether that is the case, I do not know. What I do find though is that Mr. Dalle made a good faith attempt to answer this question with what is in his power, possession and control.

b.7) Reattendance

[43] For the reasons stated above about the Dalle motion, I order that Mr. Dalle reattend to answer follow up questions concerning answers he gave to undertakings, questions taken under advisement and questions that were refused. I also order that the costs of this reattendance be reserved to be determined by the trial judge in light of the result. Finally, I rule that the time limit on this further discovery be 3.5 hours.

C. COSTS

[44] Concerning the costs of these motions, Mr. Dalle filed a costs outline that shows $14,788.87 in actual costs, $13,309.98 in substantial indemnity costs and $8,873.32 in partial indemnity costs. Ms. MacDonald indicated that Mr. Dalle is seeking the partial indemnity costs figure of $8,873.32. Cisco filed a costs outline that showed actual costs of $11,201. Mr. Majewski advised that Cisco is seeking partial indemnity costs of $6,720.60.

[45] Both counsel confirmed that offers to settle were not exchanged. I heard brief oral submissions on costs. I believe I have enough to make a fair and reasonable award of costs.

[46] When I scheduled this long motion on April 28, 2023 I strongly encouraged the parties to confer and reduce the issues in dispute. Based on what was presented, I find that Mr. Dalle indeed made a serious effort to review his position, make further disclosures and reduce the issues in dispute in the Cisco motion. Ms. MacDonald pointed me to numerous letters she sent to Mr. Majewski in this regard. Indeed, I find that Mr. Dalle’s work rendered the Cisco motion essentially moot in the end.

[47] Cisco, on the other hand, appears to have done almost nothing to reduce the issues in the Dalle motion. I was told that Cisco produced only one document during the pendency of the motion. The fact that Cisco had to bring the motion to get further answers and production from Mr. Dalle and the fact that Cisco also obtained an order for a reattendance is acknowledged by Mr. Dalle’s wise decision not to seek substantial indemnity costs. However, by its conduct on this motion, Cisco deserves to have a significant costs award made against it.

[48] I, therefore, award Mr. Dalle net partial indemnity costs for both motions, namely $7,000, which must be paid by Cisco in 30 days from today. This is the kind of an award of costs Cisco could have reasonably expected, given its own costs outline and costs claim and its conduct.

DATE: October 27, 2023

ASSOCIATE JUSTICE C. WIEBE