Rogers Communications has been ordered to hand over information on termination packages for all employees who had more than 25 years’ service and were terminated without cause in a two-year period to a worker suing it for wrongful dismissal.
It also has to provide answers about its HR practices in determining what termination packages it offered to employees, who made the determinations and whether there were any general guidelines used, according to the ruling by the Ontario Superior Court of Justice.
Background
The worker, KS, sued Rogers after being terminated. The employer alleged it had just cause to terminate her employment.
In a motion, the worker sought an order from the court compelling Rogers to answer two refusals given at the examination for discovery.
First, she sought the termination packages for employees let go between January 2017 and December 2019. Rogers refused, stating that termination packages are subject to confidentiality provisions.
Second, KS wanted information on the company’s HR practices in determining — in January 2019 — what packages would be offered to employees terminated without cause who did not have a written employment contract. She also wanted to know who made the determination and whether there were any general guidelines, written or otherwise, on things like length of notice; incentives; pensions; legal fees; and more.
Rogers balked at that request because KS was terminated for cause. “Practices of HR for termination packages when employees are terminated without cause is irrelevant. Refused,” it said.
In a subsequent response, it said: This was addressed in the previous followup [sic] questions dated October 11, 2022. The Plaintiff was terminated for cause. what [sic] Rogers’ HR practice is in without cause termination is irrelevant to [sic].”
The court said that Rogers, on discovery, refused to answer the two disputed questions on the basis of relevance. But, in front of the court, it shifted that argument to state that, in addition to being irrelevant, the questions are refused on the basis of privilege.
Are the documents relevant?
The court disagreed that they were irrelevant simply because Rogers asserted cause for dismissal.
“In the present action, the plaintiff pleads that there was no just cause for her termination,” it said. “The assertion by the defendant of a just cause defence cannot per se be a bar to discovery questions that are relevant to the assessment of damages based on the plaintiff’s pleading.”
Rogers also said the information sought was irrelevant because, broadly speaking, termination packages are determined by common law entitlement pursuant to the Bardal factors.
The court agreed, stating that those factors are applied on a case-by-case basis. If the claim by KS was solely related to a common law entitlement, the information would not be relevant, it said.
But, in this case, the plaintiff asserts a claim that goes beyond that, the court said. It includes allegations about implied terms of the employment contract and the defendant’s policies and practices. Therefore, the termination packages provided to other employees in similar situations and the HR practices used by the company in such cases are relevant to assessing the plaintiff’s damages.
Additionally, the court rejected the defendant’s assertion that the sought-after information is protected by settlement privilege.
“(Rogers) refused to answer them on the basis of relevance,” the court said. “(It) did not raise an objection based on privilege until it served its responding factum on this motion.”
Further, the defendant had not provided any evidence to prove that the communications and information in question were made on a without prejudice basis and were, therefore, privileged.
While the court noted that the Supreme Court of Canada has made it clear that settlement privilege is a class privilege, it did not accept Rogers’ position that it meant every communication between an employer and an employee in the context of termination must be privileged.
It also disagreed with a position by Rogers that the ruling would open a floodgate to attack on class privilege.
“I do not agree,” it said. “The finding in this case is based on the fact that, unlike the cases relied on by the defendant, (Rogers) chose not to file any evidence asserting that the communications and information in issue are privileged.”
Consequently, the court ordered Rogers Communications to answer the two disputed questions within 30 days. Moreover, the company was directed to pay the plaintiff’s costs for the motion, amounting to $6,540.67.
The information Rogers has to provide
This is the information Rogers is required to hand over to KS within 30 days of the order, which was dated July 25, 2023.
a) to produce the termination packages of all employees (names of said employees may be redacted so as to only provide the first initials) who had more than 25 years of service and were terminated without cause by the Defendant during the period of January, 2017 to December, 2019; and
b) To advise of the Defendant’s Human Resources department’s practice in determining in January, 2019 what termination packages would be offered to employees who were terminated without cause and did not have a written employment agreement, who made said determination, and whether there were any general guidelines, written or otherwise, used regarding:
1. Length of notice;
2. Claw-back use;
3. Short-term incentive inclusion;
4. Long-term incentive inclusion;
5. Pension;
6. Other benefits;
7. Outplacement;
8. Legal fees; and/or
9. Other.
For more information, see Saarinen v. Rogers Communications Ltd., 2023 ONSC 4328 (CanLII)
