Executive Summary: Key Legal and Evidentiary Issues

• Appropriateness of the defendant’s chosen representative for examination for discovery under Rule 31.03(2).

• Determination of whether Marc Wade qualifies as a de facto officer or employee for discovery purposes.

• Assessment of the defendant’s compliance with discovery and mediation obligations.

• Evaluation of whether the defendant’s failures justified striking out the statement of defence.

• Consideration of proportional remedies versus striking the defence for procedural non-compliance.

• Allocation of costs based on the outcome and conduct of the parties.

Facts of the case

Michelle Voegelin, the plaintiff, initiated an action against Wade and Company Inc. for wrongful dismissal, breach of contract, and breach of the Ontario Human Rights Code. Voegelin alleges she was wrongfully terminated from her role as Marc Wade’s executive assistant while on maternity leave in April 2020. She claims damages exceeding $600,000 for unpaid salary, damages in lieu of reasonable notice, moral damages, and punitive and aggravated damages. The defendant denies Voegelin was a salaried employee, asserting instead that she was an independent contractor and that she ended the relationship herself upon the birth of her child.

The plaintiff’s evidence indicates that Marc Wade hired her, negotiated her contract (which was oral), and acted as her direct report throughout her tenure. Voegelin identified Marc Wade as the appropriate discovery representative for the defendant and served a notice of examination for his attendance, which he failed to attend. The defendant refused to produce Wade, arguing he was not an officer, director, or employee during Voegelin’s time with the company, and instead proposed Laurence Ezer, the registered director and officer during the relevant period. Ezer, however, had minimal involvement with Voegelin’s work and no direct knowledge of her agreement.

Policy terms and rules at issue

The central procedural issue revolved around Rule 31.03(2) of the Ontario Rules of Civil Procedure, which governs the selection of a corporate representative for discovery. The rule allows examination of any officer, director, or employee, but the court may order another representative if appropriate. The court clarified that the relevant status is at the time of discovery, not at the time of the events in question. The court also recognized that parties may agree to a representative who is not a current officer, director, or employee, provided their answers bind the corporation.

Arguments and evidence regarding discovery representative

The defendant argued that only a former director or officer (specifically Ezer) should be produced, but the court found that Ezer lacked the necessary knowledge of the facts. The court determined that Marc Wade, as the controlling mind of the company and Voegelin’s direct supervisor, was the most appropriate representative. Evidence showed Wade’s authority and involvement in company operations, including signing correspondence as “Chairman” and directing payments to Voegelin. The court held that Wade qualified as a de facto officer and employee for the purpose of Rule 31.03(2), and his selection as discovery representative was proper.

Procedural history and conduct of the parties

The defendant failed to produce Wade for discovery and did not attend a mandatory mediation session. The court considered whether these failures justified striking out the defence under Rule 34.15(1)(b) and Rule 24.1.13(2)(b). The court found the defendant’s failures were reasonably explained: the refusal to produce Wade was based on a bona fide (though mistaken) legal position, and the mediation was missed due to a change in counsel and insufficient preparation time. The court noted that the plaintiff also contributed to delays by not promptly pursuing remedies.

Ruling and outcome

The court granted the plaintiff’s motion to compel the defendant to produce Marc Wade for examination for discovery. The motion to strike the statement of defence was dismissed, as the defendant’s conduct did not warrant such a severe remedy. The court ordered a status hearing, extended the deadline for setting the action down for trial, and imposed a litigation timetable. Costs of the motion were awarded to the plaintiff on a partial indemnity scale, fixed at $14,000, payable within 30 days. The successful party in this motion was the plaintiff, Michelle Voegelin, who obtained the key relief sought (compelling Wade’s attendance and costs), but the action itself remains ongoing with no final damages awarded at this stage.