Court in Ontario, Canada hits employer’s defense in wrongful dismissal action after he continually avoided scheduling his examination for discovery | Smaller

In Ferguson v. Yorkwest Plumbing Supply Inc.2022 ONSC 4792, an employee who sued for wrongful dismissal under Ontario’s simplified procedure rules won an order quashing the employer’s defense after the employer continually set up roadblocks regarding his participation in the examination for discovery,1 then insisted that the employee examine it first. This order of examination required by the employer was not in accordance with the notice of examination of the employee. (By serving the notice of examination first, the employee had retained his right to set the order of the discoveries).

Background

The employee began her employment with the employer in October 2015. The employer terminated the employee’s employment with one week’s notice in March 2017 alleging a performance-related reason.

The employee filed a wrongful dismissal action using the simplified procedure rules in August 2018 for payment in lieu of reasonable notice and for unpaid commissions. The parties mediated in July 2021 but did not reach an agreement. The employee’s attorney then attempted to arrange for an examination for discovery of the defendant, but his efforts were in vain as the employer’s attorney continually set up roadblocks. For instance:

  • Emails attempting to set discovery dates were ignored by defense attorney;
  • Long after the employer’s examination notices were sent out for a specific date and only days before the scheduled examination dates, the defense attorney indicated that he, his client, or both were available.
  • The defense attorney did not respond to emails asking for dates when discoveries could be scheduled.
  • The defense attorney did not provide requested documents for a planned discovery.

As a result of this conduct, the employee convened a case conference before a judge who, in his approval, noted that “the defendant delayed the discoveries” and ordered the completion of the discoveries by February 28. 2022. The judge also advised the employer to “start cooperating” in planning and “stop putting up roadblocks”. Finally, the case conference judge recommended that if there was another case of absence, counsel for the employee seek “any remedy available under the Rules of Civil Procedure” rather than establish a new calendar.

The employer offered findings on February 28, 2022. The employee agreed and sent a summons to interview the employer at 2:00 p.m., leaving the morning available to the employer to interview the employee. Counsel for the employer objected to requiring the employee to be interviewed prior to questioning his client, arguing that it required him to interview the employee rather than reserve his decision until after the interview. questioning of the employer. He argued that he would have had 60 days to decide whether to interview the employee. Although he was repeatedly asked for case law in support of his position that he had the right to second examination, counsel for the employer did not provide it.

On January 26, 2022, counsel for the employer wrote a letter to counsel for the employee in which he acknowledged receipt of the review notice dated February 28, 2022 at 2:00 p.m., expressed his intention to question the employee the same day and asked the employee the lawyer postponed his interrogation until 10:00 a.m. so that he could complete both examinations on the same day. Alternatively, he asked if the date could be rescheduled and said he would examine the employee on the new date once the employer’s lawyer had completed his examinations.

The employee requested an order striking out the employer’s defence.

Decision

In its ruling, the court noted that the approval of the case conference judge “should have been a warning to the defendant that enough was enough.” The court agreed with the employee that by serving his notice of examination first, he had preserved his right to determine the order of discovery.

The court did not agree with the employer that he was compelled to examine the employee. First, although a date and order had been set for the employer to examine the employee, the employer could choose to waive it; however, he could not ignore the schedule. Second, the court said the employer did not have 60 days to decide whether to interview the employee because the case conference judge ordered that the findings be concluded by 28 February 2022, and the employer has chosen this last day for the discoveries to occur.

The court noted that if the employer’s position in January and February 2022 had been an isolated incident, an order quashing the defense might not have been warranted. The court found, however, that in the context of the employee’s “long months of attempts to plan discoveries, the four prior review notices and numerous incidents of [employer] just ignoring the [employee’s] emails, it is reasonable to conclude that this objection was just another attempt to push discovery further down the road.

The court also noted that the employer continued to maintain its position after the employee confirmed that she would file a motion to strike the defense if the employer did not attend to the findings, and despite strong support of the case conference judge, who indicated that it would be inappropriate to impose a different schedule. Further, the court noted:[t]his kind of jockey is particularly inappropriate in a small case of simplified rules like this.

The court referred to case law that reiterated the importance of fair conduct in wrongful dismissal cases where employers have an advantage over vulnerable employees being terminated, and the importance of encouraging appropriate, fair, reasonable and decent and to prevent “acts of bad faith or unfair treatment in the event of dismissal.

In support of its decision to strike the employer’s defence, the court relied on Rules 34.15(1)(b) and 60.12, which give the court the discretion to do so where the defendant does not appear to be questioned and when a party fails to comply with an interlocutory order such as that made by the case conference judge, respectively.

Conclusion for employers

Although this is a specific case and each case is decided on its own merits, Ferguson vs. Yorkwest Plumbing reminds employers that the courts are sensitive to the advantage they have over terminated employees and may not tolerate their repeated attempts to avoid discovery in wrongful dismissal lawsuits. In such actions, employers are encouraged to avoid placing continuous roadblocks in front of an employee attempting to schedule an exam. An employer who fails to live up to the court’s expectation that it conducts itself fairly and in good faith in scheduling exams may risk having its defense overturned, as other remedies may be granted by a court (including legal fees ) because of his conduct.

Footnotes

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