Choice of Corporate Representative for Discovery

An examining party has a prima facie right to select the corporate officer, director, or employee to be examined for discovery, and the court will not lightly interfere with the selection. The onus is on the corporation to show that the person selected is inappropriate.

In Mohotoo v. Humber River Hospital, 2021 ONSC 4894, the plaintiff wanted to conduct a discovery of a certain employee of the defendant hospital, and the hospital did not agree with producing that employee.

Master La Horey noted that previous case law has set out the following factors in determining whether the examining party’s choice of discovery witness should be overturned:

• whether the person selected is sufficiently knowledgeable in relation to the matters in issue;
• whether it would be oppressive to require the person selected to be examined, for example, because it would give rise to an excessive number of undertakings or unnecessarily take the person away from onerous management responsibilities; and
• whether there would be prejudice to the examining party to be required to examine someone other than the person whom he or she selected.

The case at issue involved a wrongful termination action. The plaintiff was terminated for cause following sexual harassment investigations by his employer. He sued the hospital where he was employed.

The plaintiff wanted to examine the person who accused him of harassment. The complainant did not want to attend a discovery because he did not wish to relive his traumatic experiences with the plaintiff. The hospital wished to produce a senior human resources employee who was directly involved in the investigations into the plaintiff’s conduct.

The hospital argued that the human resources employee has significantly more direct knowledge of the matters in issue, as the critical question is not whether the sexual harassment took place, but rather whether the hospital had just cause to terminate the plaintiff. Further, the hospital argued that examining the complainant would be oppressive.

Master La Horey stated that it is clear from the hospital’s pleading and its termination letter that the issue of whether sexual harassment took place is a critical issue, if not the critical issue, in the action.

Master La Horey noted that the plaintiff’s lawyer does not expect the complainant to answer questions for which he has no direct knowledge, and is content with undertakings from defence counsel for the balance of the questions.

On the issue of the examination being oppressive to the complainant, Master La Horey pointed to a binding case authority in which a complainant was ordered to attend a discovery in similar circumstances.

Further, there was no evidence or suggestion that the plaintiff’s selection of the complainant as the discovery representative was perverse, illogical, vindictive or made for a collateral purpose, such as intimidation.

As a result, Master La Horey denied the hospital’s request to produce the human resources employee for discovery instead of the complainant.

Overall, an examining party’s choice of representative to be produced for a discovery on behalf of a corporation is not lightly interfered with.