COURT FILE NO.: CV-18-00598346-0000
DATE: 20231218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Suzana Kovacevic v. Emir Kovacevic
BEFORE: Associate Justice Rappos
COUNSEL: Suzana Kovacevic, self-represented Plaintiff
Marek Tufman, for the Defendant
Sonia Regenbogen, for AB Sciex Ltd. (non-party)
HEARD: August 30, 2023 (by videoconference)
REASONS FOR DECISION
Overview
[1] Suzana Kovacevic (“Suzana”) and Emir Kovacevic (“Emir”) met each other in April 2014. At that time, Emir was an employee of AB Sciex Ltd. (“Sciex”) and Suzana was an independent contractor providing services to Sciex. They are not related.
[2] That is likely the extent of facts that the parties would be able to come to an agreement on.
[3] The parties have been engaged in numerous legal proceedings, including a Human Rights Tribunal of Ontario application commenced by Suzana against Emir, criminal charges laid against Suzana based on allegations made by Emir, and this action.
[4] Suzana commenced this action against Emir in May 2018 and is seeking, among things, damages for the financial hardship she allegedly suffered due to her inability to obtain a better paying job because of the wrongful criminal charges she was subjected to and because of her “wrongfully [being] fired from her job for “just cause’.”
[5] Suzana alleges that Emir made complaints to Sciex about her and played a role in her contract not being renewed / her being terminated. Sciex is not a defendant in this action.
[6] Suzana brings the following motions:
(a) for an order directing Sciex to produce certain documents in accordance with the decision of Associate Justice Graham dated December 28, 2022, Kovacevic v. Kovacevic, 2022 ONSC 7296 (the “Production Decision”);
(b) for an order compelling three former employees of Sciex to be examined for discovery under rule 31.10 of the Rules of Civil Procedure (the “Rules”);
(c) for an order compelling Gordana Kovacevic (“Gordana), Emir’s wife, to be examined for discovery under rule 31.10 of the Rules; and
(d) for an order requiring Emir to continue his examination for discovery that was held on December 13, 2019.
[7] It is my understanding, based on her submissions to the Court, that Suzana is no longer seeking the relief set out above in (d).
[8] Having reviewed the filed materials and having heard the submissions made by the parties, for the reasons that follow I have dismissed the motions brought by Suzana.
Motion For Production By Sciex
Background
[9] As set out in her Fresh As Amended Statement of Claim amended on June 8, 2022, Suzana alleges that she and Emir were in a romantic relationship and, once she ended it, Emir complained to Sciex that Suzana was harassing him. The alleged harassment included an anonymous note left on the chair of Emir’s boss, and phone calls received by Emir and another staff member (Kate) at home, regarding an alleged intimate relationship between Kate and Emir.
[10] Suzana further alleges that Sciex conducted an investigation into Emir’s harassment complaints, which resulted in her contract being terminated for “just cause” in March 2016.
[11] Suzana brought a motion under rule 30.10 of the Rules of Civil Procedure seeking production from Sciex of records in its possession relating to an investigation conducted by Sciex into harassment claims made by Emir against Suzana.
[12] In the Production Decision, Associate Justice Graham held at paragraph 32 that:
“it would be unfair to Suzana K. to proceed to trial without discovery of Sciex’s documents with respect to Emir K.’s harassment complaints and any ensuing investigation…
Sciex shall therefore produce to Suzana K. and Emir K. all their documents recording any claims by Emir K. of harassment by Suzana K. and relating to any investigation of such claims.”
[13] In response, Heather Levin, the Assistant General Counsel for Sciex, swore an affidavit on February 14, 2023, stating that “no corporate human resources records of any investigation into Emir Kovacevic’s harassment claims against Susana Kovacevic from October 2015 to March 2016 exist.”
[14] In her motion, Suzana requests that the Court enforce the terms of the Production Decision respecting production of documents by Sciex.
[15] In her affidavit sworn June 7, 2023, Suzana alleges that she has not received any documents from Sciex and, even if an investigation report had not been prepared by Sciex, Sciex was required to keep records and documents under its parent company’s code of conduct and to maintain their certification under International Standards Organization (ISO) 13485: Quality Management System for Medical Device Manufacturing.
[16] Suzana also relies on an affidavit sworn on September 27, 2021 by Michael Cowhig, Vice President and General Counsel of Sciex, where he stated that Sciex “did look into concerns that Emir…raised in respect of workplace issues including whether [Suzana] had participated in threatening behaviour.”
[17] Suzana also refers to York Regional Police reports that detail Emir’s communication with the police. The reports indicate Emir’s belief that Suzana was behind the incidents.
[18] During Emir’s cross-examination, Suzana questioned him about the incidents and whether Sciex HR would have a report on the matter. Emir answered that he didn’t know but assumed Sciex HR would have something on file.
[19] As a result, Suzana believes that Sciex must have documents in its possession regarding the investigation and harassment complaints and that Sciex has failed to produce them, contrary to the terms of the Production Decision and the Rules.
[20] In response, Sciex argues that Suzana has not established sufficient grounds to justify an order being granted by the Court. Sciex submits that it has fully complied with the Production Decision, and that it cannot be ordered to produce documents that do not exist, or are not in its possession, control, or power.
[21] In an affidavit sworn on May 5, 2023, Ms. Levin confirms that Sciex had become aware of an anonymous note and phone calls received by Emir and Kate at home.
[22] Ms. Levin states that Sciex looked into “whether there was anything to link any of these incidents to any Sciex employees or contractors. Sciex HR was unable to determine who had left the note or made the phone calls, or for what purpose.”
[23] Ms. Levin notes that Sciex was “unaware of any personal relationship between Emir K. and Suzana K., and had no reason to suspect Suzana K. was involved in any of these incidents.”
[24] As a result, “Sciex HR did not carry out any investigation against Suzana K. in relation to the incidents referred to above. Since the note was unsigned and the calls were made from blocked phone number, there was no factual basis upon which to commence a workplace investigation.”
[25] Ms. Levin also details the reasons why Suzana’s contract with Sciex was not extended. Ms. Levin makes the following statements in her affidavit:
“Nothing said or done by Emir K. was a factor in the decision not to extend the contract of Suzana K.”
“Nothing said or done by Emir K. was a factor in the decision to terminate Suzana K.’s contract early.”
[26] In a supplementary affidavit sworn May 8, 2023, Ms. Levin states that, in response to a follow up request made by Suzana for any emails between two Sciex employees in March 2016, Sciex conducted a further review and found a single email. This email was sent to Suzana.
[27] Sciex has also filed affidavits sworn by Brenda Meloche, Luke Racine, and Scott Cundy, who are the three former Sciex employees that Suzana is seeking leave to examine for discovery (collectively, the “Three Sciex Individuals”).
[28] In each affidavit, the affiant states that they have reviewed Sciex’s responding motion record, including Ms. Levin’s May 5, 2023 affidavit, and to the best of their knowledge, information, and belief, the facts stated in Ms. Levin’s affidavit are complete and accurate and that they have no further information to add regarding any material issues in this matter.
[29] With respect to the statement made by Mr. Cowhig in his affidavit, Sciex argues that his affidavit was an early comment on the matter and that the affidavits of Ms. Levin were sworn after Sciex completed “deep dive investigations” into the matter and should replace the statement made by Mr. Cowhig.
Analysis
[30] The issue before the Court is whether a further order directing Sciex to produce the documents required under the Production Decision is warranted. Said in a different way, the issue is whether Sciex has failed to comply with the Production Decision.
[31] A request for production must be based on some evidence that a relevant document that has not been produced exists.[^1] It cannot simply be a fishing expedition in an attempt to find documents that do not exist and have never existed.[^2]
[32] In my view, Suzana has failed to provide any evidence in support of her position that Sciex has not produced documents required under the Production Decision.
[33] Sciex, through Ms. Levin, has made numerous clear statements that no harassment complaints were made by Emir to Sciex about Suzana and thus there was no investigation. While Sciex did look into the incidents raised by Emir, no investigation was completed and there was no connection made to Suzana with respect to the incidents.
[34] I am not persuaded by Suzana’s expectation that documents and records must exist, since Sciex is required to conduct investigations and keep documents under its parent company’s code of conduct and to maintain its ISO certification. This expectation does not change Sciex’s evidence that Emir never made any claim of harassment to Sciex about Suzana, and that no connection was made between Suzana and the incidents concerning Emir that Sciex did look into.
[35] Additionally, I am satisfied by Sciex’s submissions that the comment in Mr. Cowhig’s affidavit was made without full consideration of the matter by Sciex, and that the affidavits sworn by Ms. Levin, and the affidavits sworn by the Three Sciex Individuals, accurately reflects Sciex’s position on this issue.
[36] Simply put, Sciex cannot be ordered to produce documents that do not exist, and they have satisfied me that there are no documents in its possession that have not been produced in contravention of the Production Decision.
Disposition
[37] As a result, Suzana’s motion for an order enforcing the Production Decision against Sciex is hereby dismissed.
Motion to Examine the Three Sciex Individuals
Background
[38] Suzana has brought a motion seeking leave to examine for discovery the Three Sciex Individuals.
[39] These three individuals previously held the following titles with Sciex: Ms. Meloche was Senior Director, Human Resources and a Global HR Partner, Mr. Racine was Vice-President, Information Technology, and Mr. Cundy was Vice President Quality, Regulatory, and Clinical Affairs Diagnostics and Life Sciences Platforms.
[40] Suzana had summonses to witness issued for each of the Three Sciex Individuals on January 12, 2023 for an examination of out court as witness before hearing. For the summons for Ms. Meloche and Mr. Racine, Suzana requested that the individual bring to the examination communication exchanged regarding Emir’s harassment allegations against Suzana. In the summons for Mr. Cuddy, it requested that he bring communication he had with anyone at Sciex regarding the termination of Suzana’s employment for just cause.
[41] Suzana seeks to examine the Three Sciex Individuals on the basis that Sciex failed to produce documents as required by the Production Decision and that they have information concerning her claim that Emir got her fired from Sciex by making up harassment claims against her. Suzana says it would be unfair for her to proceed to a trial without examining them.
[42] Sciex argues, on behalf of the three individuals, that Suzana has not established sufficient grounds to just an order permitting her to examine them for discovery.
[43] Additionally, in answers to a Request to Admit dated February 19, 2020, Emir stated that he “did not falsely or otherwise influence anyone to terminate the plaintiff’s employment for cause.”
[44] As noted above, I am satisfied that Sciex has produced all documents required under the Production Decision.
Rule 31.10, Simplified Procedure and Proportionality
[45] Subrule 31.10(1) of the Rules provides that the court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action.
[46] Subrule 31.10(2) provides that for an order cannot be made unless the court is satisfied that:
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not, (i) unduly delay the commencement of the trial of the action, (ii) entail unreasonable expense for other parties, or (iii) result in unfairness to the person the moving party seeks to examine.
[47] The test under rule 31.10 has two basic components: (a) there must be a reason to believe that a person has information relevant to a material issue in the action under rule 31.10(1); and (b) the conjunctive factors in rule 31.10(2) must be met.[^3] Even if the test has been met, “the Court has a discretion as to whether discovery of a non-party should be permitted.”[^4]
[48] Discovery of a non-party is an exceptional order that is predicated on the principle that non-parties are not to be subject to discovery unless the criteria under the Rules have been satisfied.[^5]
[49] This action is governed by the simplified procedure contained in rule 76 of the Rules of Civil Procedure. The policy behind simplified procedure is to reduce the cost of litigating claims below a certain financial threshold by decreasing the amount of procedure available in these cases.
[50] An example of the implementation of the policy can be found in subrule 76.04(2), which provides that no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this rule, exceed a total of three (3) hours of examination, regardless of the number of parties or other persons to be examined.
[51] The transcript from Suzana’s examination of Emir indicates that it lasted for approximately two hours and 20 minutes. As a result, there is only 40 minutes available for examinations.
[52] In interpreting the Rules, subrules 1.04(1) and (2) provide that I must liberally construe them to secure the just, most expeditious and least expensive determination of this proceeding on its merits, and to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in this proceeding.
Analysis
[53] At the outset, subrule 31.10(1) requires Suzana to satisfy the Court that there is reason to believe that the Three Sciex Individuals have information relevant to a material issue in the action.
[54] In her Fresh As Amended Statement of Claim, Suzana seeks damages of $60,000 from Emir due to her inability to secure a similar job because “she was wrongfully fired from her job for ‘just cause’.” Suzana alleges that Emir collaborated with the Three Sciex Individuals to have Suzana’s contract terminated.
[55] I am satisfied that the reason Suzana’s contract was terminated is a material issue in the action and, given the roles that the three individuals held at Sciex, I am also satisfied that there is reason to believe that they have information regarding the termination of her contract.
[56] With respect to the factors set out in subrules 31.10(2)(a) and (b), Suzana has not satisfied me that she has been unable to obtain the information from Emir or from the person the party seeks to examine and that it would be unfair to her to proceed to trial without having the opportunity to examine the Three Sciex Individuals.
[57] Firstly, there must be a refusal, actual or constructive, from Emir to provide the information sought before Suzana is able to meet the onus under subrule 31.10(2)(a).[^6] Suzana asked Emir during his examination about the termination of her contract, and he answered that her contract had expired and that she had already signed a new contract to work for a different company. Emir also indicated in his response to the Request to Admit that he played no role in Suzana’s termination.
[58] Suzana did not ask Emir to inquire of the Three Sciex Individuals regarding the reasons for the termination of her contract.
[59] As noted above, each of the Three Sciex Individuals have already sworn affidavits confirming that they have reviewed Ms. Levin’s May 5, 2023 and have sworn that the facts are accurate. In Ms. Levin’s affidavit, she set out the reasons for Sciex deciding not to renew Suzana’s contract, and she explicitly stated twice that nothing said or done by Emir was a factor in the decision to not extend the contract.
[60] Based on these affidavits, Suzana has obtained information from the Three Sciex Individuals, in addition to Ms. Levin and Mr. Cowhig, regarding the reasons for her termination, and I do not see any unfairness in requiring Suzana to proceed to trial without examining the Three Sciex Individuals.
[61] The fact that Suzana disagrees with the evidence provided by Emir, Sciex and the Three Sciex Individuals, being that Emir played no role whatsoever in Suzana’s contract being terminated or not renewed, does not, in my view, entitle her to examine them for discovery.
[62] As well, requiring the three individuals to be examined, even for the remaining 40 minutes of examination time available to Suzana, would not be a proportionate, expeditious and least expensive determination of this action on its merits. This action was commenced over 5.5 years ago for $200,000, and all of the parties would be better served for this action to proceed to trial.
[63] The evidence from Emir and Sciex employees on her termination is consistent, and Suzana reasonably should understand what their evidence will be if she calls any of them to be witnesses at the trial.
[64] As the test under subrule 31.10(2) is conjunctive, it is not necessary for me to consider the factor under subrule 31.10(2)(c).
[65] Lastly, in Sciex’s factum, they raise the possibility that Suzana is also seeking to examine the Three Sciex Individuals under rule 36.01, which is the rule dealing with taking evidence before trial. This rule is typically relied on when a party wishes to obtain testimony from an individual who may not be able to testify at trial for various reasons, such as age, health, or location.
[66] There is no reference to rule 36.01 in Suzana’s notice of motion, and I do not view her submissions at the hearing as being an argument for an order directing the three individuals to be examined before trial for the purpose of having their testimony available to be tendered as evidence at the trial.
[67] As a result, it is not necessary to consider the applicability of rule 36.01 to this matter.
Disposition
[68] Suzana’s motion for an order for leave to examine for discovery the Three Sciex Individuals is hereby dismissed.
Motion to Examine Gordana
[69] Suzana has brought a motion seeking leave to examine for discovery Emir’s wife, Gordana.
[70] A summons to witness was previously issued by the Court for Gordana on January 12, 2023. It says that it is for an examination out of court as witness before hearing.
[71] The summons to witness indicated that Suzana wanted Gordana to produce: (a) “a letter from 5 major bank institutions (CIBC, TD, Scotia, Royal Bank and BMO) signed by bank manager and dated indicating that your husband Emir Kovacevic did not have a personal bank account (checking, saving or line of credit) in only his name on Dec 29, 2014”; and (b) a “letter from American Express signed by the manager and dated indicating that your husband Emir Kovacevic did not have AMEX card on Dec 29, 2014”.
[72] As noted above, Suzana alleges in her action that she had a romantic relationship with Emir. Emir denies this. Suzana relies on a printout of a series of Skype messages to substantiate the existence of the relationship. Emir denies the veracity of the messages. The message for December 29, 2014 refers to them having been at Costco together that day. Suzana alleges that Emir paid for her groceries that day with his debit card or American Express card, and that she reimbursed him.
[73] As part of her motion before Associate Justice Graham, Suzana sought production of Emir’s banking records. Emir previously had produced a bank account statement from a joint account he has with Gordana. There was an entry on December 29, 2014, which Emir had redacted.
[74] Suzana alleges that Emir must have had another bank account, as he would not have used his joint account to purchase her groceries.
[75] Emir swore an affidavit on December 12, 2022, where he states that the bank statement he produced is with respect to his “only interact account”.
[76] In the Production Decision, Associate Justice Graham ordered Emir to produce a statement that had the December 29, 2014 entry unredacted, which he has done.
[77] During Emir’s examination for discovery, Suzana did not ask Emir any questions regarding his bank accounts or credit cards. She did ask questions regarding the harassment complaints.
[78] In her affidavit she states that:
“To prove the romantic relationship existed between us ending of which is the reason for the tort Defendant caused, necessitates proving that the Skype messages printout is truthful and Gordana Prica Kovacevic is the witness that does possess such evidence. Gordana Prica Kovacevic would be able to confirm whether Defendant lied to this court when he swore Affidavit that besides the joint account which his wife, he didn’t have any other bank account or AMEX from which he would be able to make my Cosco purchase on December 29, 2014 as indicated in the Skype messages exchanged between the parties that day following the Cosco purchase. Gordana Prica Kovacevic is also a witness regarding alleged harassment that I committed against her while I worked at Sciex and that Defendant reported to the Police and in Discovery.”
“I’m seeking order to examine Gordana Prica Kovacevic prior to hearing to obtain evidence she possesses having to do with material issues of tort arising from malicious prosecution, assault, and deliberate infliction of mental and emotional pain and suffering such evidence is necessary to resolve the issues in dispute in pending litigation.”
[79] Emir argues that Suzana’s motion should be dismissed, as she has already obtained information from him.
[80] In my view, Suzana has failed to satisfy the factors set out in subrule 31.10(2)(a) and (b). Suzana has already asked Emir under oath on discovery questions regarding the alleged romantic relationship, the incidents that led to the police reports, the altercation on August 16, 2016, and her termination from Sciex. She did not ask him any questions regarding his bank accounts or credit cards. Suzana also has Emir’s responses to the Request to Admit.
[81] As well, while Suzana and Emir’s lawyer exchanged numerous correspondence regarding the summons for Gordana, nowhere in the record is it evident that Suzana requested that Gordana provided information to her in response to questions she has of her.
[82] Additionally, I do not see how there would be any unfairness in Suzana proceeding to trial without examining Gordana prior to the trial given Emir’s affidavit regarding his bank accounts, the fact that he has been examined for discovery, and has provided a response to the Request to Admit.
[83] Suzana appears to want to examine Gordana in an attempt to challenge or test the information she has received from Emir to date. I do not believe that the purpose of examining a non-party with leave is to allow a party to challenge the evidence provided by the opposing party in the action. Suzana has not directed the Court to the existence of any case law that would support such an interpretation of subrule 31.10.
[84] The issues of proportionality and the simplified procedure limit on examinations stated above for the Three Sciex Individuals equally apply to the request to examine Gordana.
[85] As a result, Suzana’s motion for leave to examine Gordana for discovery is dismissed.
Disposition and Costs
[86] For the reasons set out above, Suzana’s motions are hereby dismissed.
[87] With respect to costs, I strongly urge the parties to reach an agreement. If they are unable to do so, Emir and Sciex shall make written submissions, not to exceed three pages plus a costs outline, which are to be served and submitted by January 19, 2024. Suzana shall have until February 2, 2024 to serve and submit her responding submissions. All submissions are to be sent to Assistant Trial Coordinator Kimi Sharma (kimi.sharma@ontario.ca).
Associate Justice Rappos
DATE: December 18, 2023
[^1]: Bentprop Holdings Inc. v. TFS Management, Inc., 2022 ONSC 4314, para. 17; Stewart v. Kempster, 2012 ONSC 7236, para. 12; Rossi v. Vaughan (City), 2010 ONSC 214, para. 10.
[^2]: Stewart v. Kempster, 2012 ONSC 7236, para. 31; Spasic v. Imperial Tobacco Ltd., 1998 CanLII 14716, p. 12.
[^3]: Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P., 2014 ONSC 2699, para. 2.
[^4]: McDermid Paper v. McDermid et al, 2010 ONSC 5404, para. 25.
[^5]: Mancinelli v. Royal Bank of Canada, 2017 ONSC 87, para. 44.
[^6]: Famous Players Development Corp. v. Central Capital Corp., 1991 CanLII 7202 (ON SC).