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Trucking contractor ordered to provide better document disclosure in wrongful dismissal case

by HR Law Canada

The Ontario Superior Court of Justice has denied Precision Resource Canada’s motion to strike a wrongful dismissal claim but has ordered the plaintiff — who provided trucking services to the company — to submit a more comprehensive affidavit of documents.

The case hinges on the nature of the worker’s relationship with Precision, with the company asserting he was an independent contractor through his business, Prompt Express Ltd., while he claims he was an employee wrongfully terminated after five years of service.

Judge criticizes document non-compliance

Associate Justice Todd Robinson presided over the motion. Precision sought to dismiss the worker’s statement of claim due to his alleged non-compliance with documentary discovery obligations or, alternatively, to compel a sworn further and better affidavit of documents.

Precision’s counsel argued that the worker, H.D., failed to produce all relevant documents as required by the Rules of Civil Procedure and the agreed discovery plan. His lawyer contended that the motion was disproportionate and unnecessary.

Justice Robinson acknowledged Precision’s strong argument for dismissal, stating, “(H.D.’s) ongoing non-compliance is essentially unexplained in the record before me other than by unsubstantiated and self-serving statements.” However, he decided against dismissal, providing H.D. a final opportunity to comply with his document production obligations.

Incomplete and unconvincing document production

The ruling detailed H.D.’s failures in document production. Initially, he served an unsworn affidavit by the Nov. 30, 2021, deadline, disclosing some business records of Prompt but omitting many crucial documents, including income tax returns.

Subsequent affidavits in March 2022 and January 2024 continued to lack complete disclosure, particularly personal and corporate tax returns.

In June 2022, Precision’s lawyer raised concerns about incomplete document production, which H.D. sought to address in January 2023 by stating he did not possess the documents listed in the discovery plan. However, further documents surfaced during the motion, contradicting this claim.

Justice Robinson noted, “The obligation of every party to civil litigation is to produce every document relevant to any matter in issue that is in the possession, control or power of the party.”

H.D.’s affidavits did not include a detailed Schedule C, which should have outlined lost possession or control of documents, as required by subrule 30.03(2).

A final opportunity for compliance

Justice Robinson’s analysis emphasized the importance of proper and full disclosure in civil litigation. He referenced the Court of Appeal’s characterization of disclosure obligations as “at the heart of the rules governing actions in the Superior Court of Justice.”

He also highlighted that while the remedy of striking out a pleading is not reserved for “last resort” situations, courts generally prefer ensuring reasonable opportunities for parties to cure non-compliance.

Despite finding the worker’s’ explanations “bare, self-serving, and frankly unconvincing,” the judge granted him one last chance to comply. He ordered H.D. to serve a sworn further and better affidavit of documents by July 31, 2024, consolidating all previously served documents and addressing the remaining required documents from the discovery plan.

New deadlines set

The revised timetable mandates completing examinations for discovery by January 31, 2025, unless both parties agree to a further extension. The judge emphasized that no document should be redacted without clear justification and detailed explanation.

Justice Robinson concluded by encouraging both parties to settle costs amicably. If an agreement is not reached, a case conference will be scheduled for oral submissions on costs within 30 days.

For more information, see Dawkins v. Precision Resource Canada Ltd., 2024 ONSC 3514 (CanLII)

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