Nov 18, 2022  By John Hyde

Ontario Court Confirms Employee

The lawyers at Hyde HR Law recently won a contentious motion before the Ontario Superior Court of Justice. This important decision confirms the rights of dismissed employees during the litigation process.

The Issue

The issue was whether a dismissed employee had the right to examine the President of a large corporation (her former employer), at an examination for discovery. 

In civil litigation, the examination for discovery is a crucial step in a legal proceeding where each party gets to "discover" the other side by obtaining oral and documentary evidence. In Ontario, it is a dismissed employee's presumptive right to select which representative of the company should be produced by the employer at the examination for discovery.

In this case, the employer refused to produce the President of the company and instead brought a motion seeking a court Order to replace the President with another employee. 

The Law

When deciding whether or not to substitute a corporate representative at examination for discovery, the court's primary consideration is whether the representative selected by the employee (in this case the President of the company) has sufficient knowledge of the issues in the lawsuit.

The corporate representative does not need to be the most knowledgeable person in the lawsuit. They simply need to have sufficient knowledge of the matters in question. Accordingly, the threshold is set quite high for an employer to convince a court not to allow the corporate representative selected by the employee to be discovered.

Other considerations include whether the employee's selection is "oppressive" to the employer, for example, by taking the representative away from onerous management responsibilities. On the other hand, the Court will also consider whether it would be "unfair" to the employee to examine someone other than the person they selected.

The Decision

In this case, the Court ultimately agreed that the President had sufficient knowledge of the issues and did not allow the employer to substitute the representative selected by the employee, despite the fact that she was the President of a large corporation with significant managerial responsibilities. Some of the reasons relied upon by the court included that, the President was the dismissed employee's direct superior and was the decision-maker involved in the termination of her employment.

The Court was also not convinced that it would be oppressive to examine the President, noting that "presidents of corporations and, more generally, busy people are not immune from being produced on examinations for discovery."

In the end, the Court agreed that the selection of the President was the logical and rational choice.

Takeaways for Employees and Employers

This important court ruling confirms that terminated employees should not shy away from examining the person they believe has the most critical information pertaining to their lawsuit "“ even if that person is the top-ranking executive of a large corporation. This is particularly important if the reasons for the dismissal are in dispute.

For employers, this case illustrates the importance of putting your best foot forward when asking the Court for a remedy, particularly one that would set aside the presumptive right of a terminated employee. In this case, direct evidence from the President of the company may have strengthened the employer's position at the motion.

Employers should carefully consider the merits of a request to examine a top-ranking officer or director. When faced with such a request, employers should seek guidance from an experienced employment lawyer.

The expert lawyers at Hyde HR Law regularly assist clients with effective litigation strategies. We can answer any question relating to litigation and workplace law generally. Please do not hesitate to contact us.

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