Case Report – Wrongful dismissal plaintiff can discover his former subordinate about her harassment complaint

On September 3rd, Strathy J. held that it was not improper for a wrongful dismissal plaintiff to conduct oral discovery of a former subordinate whose harassment complaint led to his termination.

The plaintiff sought to examine the complainant, and the employer moved for an order directing the examintion of the human resoruces manager who had conducted the harassment investigation instead.

Strathy J., hearing an appeal of a master’s order, dismissed the employer’s argument that the choice was improper because the complainant did not participate in the decision to terminate and had no knowledge of the corporate imperatives underlying the decision. Strathy J. held that the request was “rational” and made for a proper purpose and held that the plaintiff would be prejudiced by being deprived of an opportunity to examine the person whose evidence “goes to the heart of the case.” Strathy J. also noted that the plaintiff’s counsel had undertaken that the complainant need not prepare herself for examination on issues of which she had no personal knowledge, said he would be happy to receive undertakings on such issues and suggested that he would be willing to examine the complainant without the plaintiff present.

Ciardullo v. Premetalco Inc., 2009 CanLII 45445 (ON S.C.).

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