In Ferguson v. Yorkwest Plumbing Supply Inc., 2022 ONSC 4792, an employee who commenced a wrongful dismissal action via Ontario’s Simplified Procedure rules was granted an order striking the employer’s statement of defence after the employer continuously put up roadblocks regarding its attendance at examination for discovery,¹ and then insisted that the employee examine it first.  This order of examination demanded by the employer was not in accordance with the employee’s notice of examination. (By serving the notice of examination first, the employee had preserved its right to set the order of 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 cause related to performance.  

The employee commenced 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 conducted a mediation in July 2021 but they did not settle.  The employee’s lawyer then attempted to arrange to examine the defendant for discovery but its efforts were unsuccessful as employer’s counsel continuously put up roadblocks.  For example: 

• Emails attempting to set up discovery dates were ignored by defence counsel;
• Long after notices of examination of the employer for a specific date were sent and only a few days before the scheduled examination dates, defence counsel advised that he, his client, or both were available.
• Defence counsel failed to respond to emails asking for dates when discoveries could be scheduled.
• Defence counsel failed to provide requested documents for a scheduled discovery.

As a result of this conduct, the employee scheduled a case conference before a judge who, in his endorsement, noted “the defendant has been delaying discoveries” and ordered the completion of discoveries by February 28, 2022.  The judge also advised the employer to “start cooperating” in scheduling, and to “cease putting up roadblocks.”  Finally, the case conference judge recommended that if there was another instance of non-attendance, employee’s counsel move to obtain “whatever remedy is available under the Rules of Civil Procedure” rather than set a new schedule. 

The employer proposed discoveries on February 28, 2022.  The employee agreed and sent a notice to examine the employer at 2:00 pm, leaving the morning available for the employer to examine the employee.  Employer’s counsel objected to having to examine the employee before his client was examined, arguing that this forced him to examine the employee rather than reserve that decision until after the employer was examined. He argued he would have had 60 days to decide whether to examine the employee.  Despite being asked repeatedly for caselaw to support his position that it was his right to examine second, employer’s counsel did not provide it. 

On January 26, 2022, employer’s counsel wrote a letter to employee’s counsel in which he acknowledged receiving the Notice of Examination for February 28, 2022 at 2:00 pm, expressed an intention to examine the employee on the same day, and asked that employee’s counsel move its examination to 10:00 am so they 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 after employer’s counsel completed his examinations.

The employee sought an order striking the employer’s statement of defence. 

Decision

In its decision, the court noted that the case conference judge’s endorsement “should have been a warning to the defendant that enough was enough.”  The court agreed with the employee that by serving its notice of examination first, it had preserved its right to set the order of discoveries.

The court did not agree with the employer that it was forced into an examination of the employee.  First, while a date and order was set for the employer to examine the employee, the employer could choose to forego it; however, he could not ignore the schedule.  Second, the court stated that the employer did not have 60 days to decide whether he would examine the employee because the case conference judge ordered that discoveries be concluded by February 28, 2022, and the employer chose that last day for the discoveries to occur.

The court noted that had the employer’s position in January and February 2022 been an isolated incident, an order striking the defence may not have been warranted.  The court concluded, however, that in the context of the employee’s “…months’ long attempts to schedule discoveries, the four earlier notices of examination and the many incidents of the [employer] just ignoring the [employee’s] emails, it is a reasonable conclusion that this objection was just another attempt to kick the discovery can further down the road.”   

The court also emphasized that the employer continued to maintain its position after the employee confirmed she would bring a motion to strike the defence if the employer did not attend discoveries, and despite the strong endorsement of the case conference judge, which indicated it would be inappropriate to impose another timetable.  Furthermore, the court noted, “[t]his kind of jockeying is particularly inappropriate in a small simplified rules case like this one.” 

The court referred to caselaw that reminded of the importance of fair conduct in wrongful dismissal cases where employers have an advantage over vulnerable terminated employees, and the importance of encouraging proper, fair, reasonable, and decent conduct, and preventing “acts of bad faith or unfair dealing on dismissal.”

In support of its decision to strike the employer’s defence, the court pointed to Rules 34.15(1)(b) and 60.12, which a provide the court with discretion to do so when the defendant fails to attend to be examined, and when a party fails to comply with an interlocutory order such as the one made by the case conference judge, respectively.

Bottom Line for Employers

Although this is a fact-specific case and every case is decided on its own merits, Ferguson v. Yorkwest Plumbing reminds employers that courts are sensitive to the advantage they have over terminated employees, and they may not tolerate their repeated attempts to avoid being discovered in wrongful dismissal actions.  In the context of such actions, employers are encouraged to avoid placing continuous roadblocks before an employee that is attempting to schedule an examination.  An employer that falls short of the court’s expectation that it conduct itself fairly and in good faith in examination scheduling may risk having its statement of defence stricken, with potentially other remedies being awarded by a court (including legal fees) as a result of its conduct.