Thursday, 5 August 2021

Complainant in Sexual Assault Claim Compellable as Employer’s Representative on Examinations for Discovery in Wrongful Dismissal Claim

Is it “oppressive” to compel an unwilling complainant in a sexual assault and harassment matter to be examined for discovery when he is not a party to the underlying lawsuit and when his version of events has already been made available to the plaintiff in the form of his written complaint?

In Mohotoo v Humber River Hospital, 2021 ONSC 4894 (CanLII), Master Lisa La Horey of the Ontario Superior Court held that, on the basis of binding case law, the legal answer is that it is not “oppressive.”

Facts

The plaintiff in a wrongful dismissal action sought to examine for discover as part of his litigation claim, “A.B.”, an employee of the defendant Humber River Hospital.

A.B. had made a complaint of sexual harassment against the plaintiff to the defendant, Hospital. The defendant investigated the complaint and subsequently terminated the plaintiff’s employment with cause.

After the plaintiff selected A.B. as the person he wished to “examine for discovery”, the defendant Hospital moved before the court to substitute the plaintiff’s selection of A.B. with a senior human resources business partner. In the alternative, the Hospital requested an order that the examination for discovery of the representative selected by the plaintiff proceed solely by way of written questions and answers.

By way of background, the plaintiff had been employed by the Hospital from 1989 until his employment was terminated on a with cause basis on February 14, 2020. He sued the Hospital, seeking wrongful dismissal damages as well as punitive and aggravated damages.

The statement of defence filed by the Hospital contains the following allegations:

  • Paragraph 16 – Under a heading entitled “Events Leading to the Plaintiff’s Termination” the Hospital pleads that or around January 29, 2020, A.B. made a verbal complaint of sexual harassment against the plaintiff.
  • Paragraph 20 – Under a heading entitled “The Hospital’s Investigation into [A.B.]’s Allegations Against the Plaintiff”, the Hospital states that A.B.’s verbal complaint of January 29, 2020 was made to Ms. Thomas, a program director as the Hospital.
  • Paragraph 21 - A.B. was interviewed by Ms. Thomas, and two other hospital employees concerning his allegations on or about January 30, 2020. Ms. Regala, [the person proposed by the Hospital to be examined for discoveries] was not one of the three employees.
  • Paragraph 26 - The plaintiff was interviewed was interviewed by Ms. Regala and two other Hospital employees on or around February 4, 2020 regarding the allegations made against him by A.B. (the “First Interview”).
  • Paragraph 24 - A.B. submitted a written complaint to the Hospital on or around February 10, 2020.
  • Paragraph 27 - The plaintiff was interviewed again on February 12, 2020 to discuss further the allegations made against him by A.B. (the “Second Interview”).
  • Paragraph 28 – “Based on the Plaintiff’s conduct and answers to questions asked in both the First and Second Interviews, the Hospital determined that the Plaintiff lacked credibility and was not being honest or forthright in responding to the allegations made by [A.B.] against him.”
  • Paragraph 29 – “At the conclusion of the investigation, the Hospital concluded that, on a balance of probabilities, the Plaintiff had sexually harassed [A.B.] in direct contravention of the [Hospital’s Anti-Harassment and Anti-Discrimination] Policy and the [Hospital’s] Code [of Conduct].
  • Paragraph 30 – “Given the severity of the Plaintiff’s conduct, and given the Hospital’s duty pursuant to the Ontario Occupational Health and Safety Act to ensure the safety of its employees, the Hospital concluded that it had no choice but to terminate the Plaintiff’s employment on a with cause basis.”

The defendant did not plead any reason for the termination other than the allegations made by A.B.

In his statement of claim, the plaintiff denied the allegations of wrongful conduct towards A.B., and denies that the defendant had just cause to terminate his employment.

The plaintiff indicated an intention to examine A.B. for discovery stating he needed to examine A.B. as it was his harassment complaint that led to the termination of his employment. The Hospital proposed Ms. Regala as its representative for discovery. The plaintiff refused to accept Ms. Regala and accordingly the Hospital brought the motion, the decision on which is the subject of this post.

In an exchange of emails, counsel for the plaintiff indicated that he would not need to examine A.B. if the defendant undertook not to call A.B. at trial. Defendant’s counsel responded by stating that although A.B. “had indicated at this time that he will not participate in the proceedings, I cannot foreclose the possibility that he will change his mind in the future.”

The Hospital filed as evidence an affidavit from the Hospital’s Director of Employee and Labour Relations, who oversaw the investigation into the allegations made by A.B. against the plaintiff. The deponent stated that he spoke and met with A.B. as well as union representatives. During these communications A.B. said that he did not wish to be examined, primarily because he did not wish to relive his traumatic experiences with the plaintiff. The union has taken the position that that A.B. is not a representative of the Hospital and that as a victim it would be unconscionable to have him participate in the litigation without his consent. The Hospital representative stated that he has made all reasonable efforts to persuade A.B. to participate in the discovery process, but A.B. has refused to do so. He further deposes that he believed that the union would have filed a grievance against the Hospital had it attempted to compel or pressure A.B. into attending the discovery.

Decision of the Court

In dismissing the Hospital’s motion, Master Lisa La Horey provided the following reasons for decision:

[13] Rule 31.03 of the Rules provides as follows:

31.03(1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (3) to (8).

(2) Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court.

[14] The law on the issue of when a court will order the examination of a representative other than the one chosen by the examining party is concisely summarized in the decision of Strathy J. (as he then was) in Ciardullo v Premetalco Inc.

9 … the examining party has a prima facie right to select the corporate officer, director, or employee to be examined, that the court will not lightly interfere with the selection, and that the onus is on the corporation to show that the person selected is inappropriate: [citations removed.] Those authorities indicate that in determining whether to substitute another corporate representative for the person selected, the court should consider:

- whether the person selected is sufficiently knowledgeable in relation to the matters in issue;

- whether it would be oppressive to require the person selected to be examined, for example because it would give rise to an excessive number of undertakings or unnecessarily take the person away from onerous management responsibilities; and

- whether there would be prejudice to the examining party to be required to examine someone other than the person whom he or she selected.

[Emphasis in the original.]

[15] Ciardello is on all fours with the case at bar. It also involved a wrongful dismissal action in which an employee was terminated for cause following an allegation of sexual harassment by a co-worker and a subsequent workplace investigation. As in this case, the plaintiff sought to examine the complainant for discovery. The employer brought a motion under Rule 30.03(2) for an order substituting a human resources manager involved in the workplace investigation as its discovery representative. Justice Strathy upheld the Master’s decision requiring the employer to produce the complainant/ employee for discovery. The employer in Ciardello made many of the same arguments in that case that the employer makes in this case.

Whether the person selected is sufficiently knowledgeable in relation to the matters in issue

[16] The Hospital takes the position that Ms. Regala “has significantly greater direct knowledge of the underlying circumstances.” It says that the critical question is not whether the sexual harassment took place, but rather whether the Hospital had just cause to terminate the plaintiff. The Hospital submits that what is in issue is its investigation and whether there was a basis to terminate the plaintiff, not whether A.B. was telling the truth. It says that Ms. Regala is the only witness with personal knowledge of every step in the investigation, lacking personal knowledge only of the experience of sexual harassment by the plaintiff.

[17] The plaintiff says that A.B. clearly has sufficient knowledge about the main factual issue – whether the plaintiff sexually harassed A.B. In addition, the plaintiff asserts that cause must be determined objectively and that the honest intention of the employer in terminating the employee is not the standard utilized by the court. The plaintiff says that, at most, the defendant’s allegations about the propriety of the investigation may be relevant to its defence to the punitive and aggravated damages claims.

[18] In Ciardello, Justice Strathy found that the complainant Mrs. K “is clearly sufficiently knowledgeable about the facts surrounding the critical issue of whether she was sexually harassed by the plaintiff.”

[19] At paragraph 22, Justice Strathy stated:

22 I agree with the Master that the evidence of Mrs. K. goes to the heart of the case. One cannot escape the fact that the plaintiff will be required to meet Mrs. K.'s allegations that he sexually harassed her. All the other factors set out in Alleyne v. Gateway Cooperative Homes Inc. are secondary. It would be unfair to require the plaintiff to attempt to obtain evidence and admissions on this critical issue from a witness who has no first-hand knowledge of the events. The plaintiff is entitled to know, to explore, and to test the evidence against him prior to trial.

[20] The Hospital attempts to distinguish Ciardello by suggesting that in Ciardello Justice Strathy suggested that the critical issue was whether the sexual assault took place, whereas in this case the critical issue is the Hospital’s investigation. In Ciardello, as here, the discovery witness proposed by the employer was the individual who had conducted the investigation into the alleged sexual harassment and thus the case is not distinguishable on this point.

[21] Further, in its statement of defence, the Hospital focuses on the alleged sexual harassment of A.B., its belief in the veracity of A.B.’s accusations against the plaintiff, and the lack of credibility of the plaintiff. As is evident from both the statement of defence and the termination letter, the Hospital does not rely on any other incident of alleged misconduct to justify its decision to terminate the plaintiff’s employment for cause. It is clear from the Hospital’s own pleading and termination letter, that the issue of whether the sexual harassment took place is a critical issue, if not the critical issue.

[22] The Hospital asserts that Ms. Regala has significantly more direct knowledge of the matters in issue. However, the test is not which witness has the most knowledge or which witness would objectively be the best choice. The examining party is entitled to his or her choice of witnesses under this aspect of the test, provided that the proposed witness is sufficiently knowledgeable.

[23] The plaintiff asserts that A.B., a front-line unionized employee, is not able to inform himself of management’s decision to terminate another employee, nor would it be appropriate for him to do so. However, as noted above, plaintiff’s counsel has advised that he does not expect A.B. to answers questions of which he has no knowledge and is content with undertakings from defence counsel for the balance of the questions.

Whether it would be oppressive to require the person selected to be examined

[24] The Hospital asserts that it would be oppressive to it to require A.B. to be examined for discovery as there will be undertakings for the Hospital’s legal counsel for areas outside A.B.’s personal knowledge. In this regard, the Hospital relies on Nicolardi v Canadian Tire Corporation. In that case the plaintiff in a wrongful dismissal case sought discovery of Martha Billes, a member of the defendant’s board of directors and its majority shareholder. Master McAfee found Ms. Billes did not have sufficient knowledge, or any direct involvement in, the matters in issue. Accordingly, she would have had to inform herself of the matters in issue and provide “an excessive number of undertakings”. In those circumstances Master McAfee concluded that it would be unduly onerous for Ms. Billes to be examined for discovery. This case is very different in that A.B. does have direct knowledge of some of the matters in issue, including a critical issue.

[25] The defendant also argues that it would be prejudiced if A.B. failed to attend the discoveries or his refusal to answer any proper questions as it could face sanctions on a motion. However, this is putting the cart before the horse. If this scenario comes to pass, a court could consider the fact that the Hospital proposed a different representative if a motion is brought.

[26] The Hospital also states that it is, on its face, oppressive to compel an unwilling complainant in a sexual assault and harassment matter to be examined for discovery when he is not a party and when his version of events has already been made available to the plaintiff in the form of his written complaint. The Hospital points to no authority in support of this proposition but argues that the changing societal norms on sexual assault matters compels a consideration of this factor and an expansion of the traditional analysis. In this regard, the Hospital refers to amendments to the Criminal Code to protect dignity interests of sexual assault complainants.

[27] In Ciardello, the court refused to substitute another witness for the alleged victim of sexual harassment notwithstanding arguments made by the employer that the examination of the complainant would be “oppressive in the sense that she will be confronted by counsel for her alleged harasser and required to relive experiences that, according to the evidence, have caused her to experience feelings of shame, guilt, confusion, anger, fear and disgust”.

[28] The Hospital notes that Ciardello was decided prior to more recent decisions and legislative reform which have underscored the importance of protecting the privacy and dignity of sexual harassment complainants and suggests that Ciardello can be distinguished on that basis. However, Ciardello is on all fours with the case at bar and is binding upon me.

[29] As in Ciardello, there is no evidence or suggestion that the plaintiff’s selection of A.B. as the discovery representative is perverse, illogical, vindictive or made for a collateral purpose, such as intimidation.

Whether there would be prejudice to the examining party to be required to examine someone other than the person whom he or she has selected

[30] The Hospital submits that there is no prejudice to the plaintiff if Ms. Regala is examined instead of A.B. It submits that if A.B. chooses to testify at trial and put his version of events before the trial judge, the plaintiff will have the opportunity to obtain evidence and admissions on what it calls a “collateral issue” at that time.

[31] I do not accept this submission. As stated by Justice Strathy in the passage from Ciardello quoted above, it would be unfair to the plaintiff to attempt to obtain evidence and admissions on the allegations of sexual harassment from someone who does not have first-hand knowledge. The plaintiff is entitled to test the evidence against him prior to trial. Moreover, the Hospital’s submission ignores the broad purposes of examinations for discovery. [FN9: The purposes of discovery are summarized in Green v Viens, 2018 ONSC 498 (Master) at para 24]

Conclusion on Issue 1

[32] For the reasons set out above, I am not satisfied that the Hospital has discharged the onus on it to displace the plaintiff’s prima facie right to select the officer, director or employee to be examined.

Issue 2 – Whether the examination of A.B. ought to proceed solely in writing

[33] The Hospital asks for an order, in the alternative, that the examination for discovery of A.B. should proceed by way of written questions and answers. The plaintiff opposes.

[34] The Rules allow for written questions and answers, at the option of the examining party. Rule 31.02 provides as follows:

31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.

(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise.

[35] The plaintiff does not consent.

[36] The Hospital refers to Rule 2.01 in its factum on this issue. Rule 2.01 deals with the effects of non-compliance with the Rules and is, as such, inapplicable. Moreover, Rule 2.01 cannot be used to rewrite Rule 31.02, which makes written discoveries available at the option of the examining party.

[37] The Hospital further submits that the discovery should take place by written questions and answers “as suggested by Justice Strathy” in Ciardello. However, it is clear from the context that Justice Strathy was suggesting a possible consent agreement between the parties. As noted, no consent is present in this case.

While the Hospital’s motion was dismissed, meaning that the plaintiff would be entitled to examine A.B. for discovery as requested, Master La Horey made the following, closing comments,

I accept that the examination for discovery may be very distressing for A.B. I anticipate that counsel will confer and find ways to minimize any distress. If not, counsel may bring a motion for directions regarding the conduct of the discovery.

The issue of costs was left for another day.

Commentary

Before commenting on the court’s decision, let us pause for a moment to reflect on what Master La Horey said in paragraph 28 of her reasons for decision:

[28] The Hospital notes that Ciardello was decided prior to more recent decisions and legislative reform which have underscored the importance of protecting the privacy and dignity of sexual harassment complainants and suggests that Ciardello can be distinguished on that basis. However, Ciardello is on all fours with the case at bar and is binding upon me.

One queries whether such statement is, essentially, a request by Master La Horey for the Hospital to appeal her decision so that it may be considered at a higher level.

Ciardello was decided in 2009. While not that long ago, one has to acknowledge that in some respects a lot has changed in the interceding 12 years, especially when it comes to workplace harassment.

On the whole, I have some concerns with the idea that a respondent, found “guilty” in an internal, workplace sexual harassment complaint, can select the complainant in that complaint as the representative of the dismissing employer. On the other hand, the entire case is, essentially, a re-trying of the workplace harassment investigation and so the evidence of the complainant is material to the claim itself.

Whether the Hospital chooses to appeal, and whether the Superior Court elects to revisit its decision in Ciardello are both yet to be seen. Until then, however, the decision in Ciardello, especially on the issue of oppression, appears to remain good law.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner

--

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Image credit: istock/mrdoomits

No comments:

Post a Comment