Ontario court rejects employer’s motion to replace witness, blasts affidavit written by articling student in wrongful dismissal case

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The Ontario Superior Court of Justice has rejected a motion by Open Storage to replace a witness in a wrongful dismissal case, leaving the company liable for costs.

The case, emerging from the initial waves of the COVID-19 pandemic, involves a former employee who claims he was constructively dismissed after being laid off and not reoffered employment under substantially comparable terms. In contrast, the company argues that the employee abandoned his position.

The plaintiff sought to examine DG, his supervisor of 31 years, for discovery. However, DG failed to appear on the agreed date, leading the company to propose SR, it vice-president of corporate strategy and finance, as an alternative witness, claiming he made the layoff and recall decisions.

The court found the company’s motion lacked merit, emphasizing the plaintiff’s right to choose the individual to be examined.

Affidavit from articling student criticized

The judge also criticized the defendant for offering an affidavit from an articling student in support of their motion, stating it contained opinions and assertions beyond the student’s knowledge, which should not have been included in an affidavit.

That affidavit called DG a “wholly inappropriate witness” and said the VP is “an entirely appropriate witness by virtue of his full and complete knowledge of each and every matter at the heart of this action.”

“These statements clearly are not within the articling student’s personal knowledge. She must be relying on a source for the information,” the Court said. “However, nowhere in the affidavit does she identify any source of information, which violates subrules 4.06(2) and 39.01(4) of the Rules of Civil Procedure.”

Importance of discovery

The court underscored the importance of discovery in allowing parties to understand the case they must meet and obtain necessary admissions for trial. In dismissing the motion, the judge reinforced that discovery decisions should not be influenced lightly, especially when the examining party’s choice of witness is deemed sufficiently knowledgeable about the matters in dispute.

“Outside of bald allegations stated in the articling student’s affidavit that I place little weight on, the Defendant has failed to satisfy me that it is appropriate to substitute (DG) with (the VP), or that it would be oppressive or prejudicial to allow (DG) to be examined on behalf of the Defendant,” the Court said.

The court ordered the defendant to pay $10,000 all inclusive in costs to the plaintiff on a partial indemnity basis, criticizing the defendant for not communicating its objections to the chosen witness in a timely manner, which contributed to unnecessary prolongation of the proceedings.

“As noted above, on June 17, 2022, the Plaintiff served its notice to examine (DG) on October 28, 2022. At no time during the 4.5-month period did the Defendant inform the Plaintiff of its position that (DG) was not an appropriate witness,” it said.

For more information, see Jeffrey v. Open Storage, 2024 ONSC 634 (CanLII).