Executive Summary: Key Legal and Evidentiary Issues

• Appeal concerns leave under Rule 31.03(2)(b) to examine a second corporate representative of the City of London through a time-limited and hybrid discovery process.
• Dispute centers on whether discovery from the first corporate representative, Mr. Goldrup, was incomplete given his short tenure and limited overlap with the plaintiff’s long employment and key events.
• Significance of Ms. Livingstone’s evidence arises from her long managerial role, direct involvement with the plaintiff, and participation in a prior workplace complaint meeting relevant to the wrongful dismissal and discrimination claims.
• Appellant City alleges palpable and overriding errors, including reliance on a supposed agreement about written questions and misapplication of the strict Fischer test for examining a second corporate representative.
• Court upholds the Associate Justice’s application of the Fischer principles, finding both branches satisfied and emphasizing proportionality in ordering a one-hour oral examination plus limited written questions.
• No monetary damages or specific costs are determined; the only operative order is dismissal of the appeal and confirmation of the discovery order, with costs to be addressed later if the parties cannot agree.

Background and employment context

The case arises from a wrongful dismissal action with allegations of workplace discrimination and harassment brought by Patricia Foto against her longtime employer, The Corporation of the City of London. The plaintiff worked for the City in human resources and talent management for 21 years, serving in a managerial capacity for approximately 10 of those years. At the time of her termination, the City Manager was Ms. Lynne Livingstone, who had managerial oversight of the plaintiff’s employment. Following her termination, the plaintiff issued a claim alleging that the way her employment ended, and the surrounding treatment she received, amounted to wrongful dismissal and included discriminatory and harassing conduct. The City later produced as its corporate representative for discovery Mr. Michael Goldrup, the Director of People Services. His involvement with the plaintiff was confined to roughly two months leading up to the termination, and he reported to Ms. Livingstone. By contrast, Ms. Livingstone had a much longer overlap with the plaintiff during her two-decade career and had been directly involved in a prior workplace complaint meeting involving the plaintiff.

Discovery disputes and prior case management

The parties’ discovery process became protracted and difficult. The plaintiff initially sought to examine Ms. Livingstone, but the City presented only Mr. Goldrup for discovery. He was examined over multiple sittings totaling approximately 6.5 hours, gave about 30 undertakings, and provided a will-say statement indicating he took responsibility for the termination decision. Nonetheless, the discovery process was marred by cancellations and adjournments, for reasons including scheduling and late service issues. In a 2023 case conference endorsement, Wilson J. observed that Ms. Livingstone possessed relevant evidence that might be called at trial and that this information ought to be provided to the plaintiff. The endorsement also stressed that, because he had not been employed at the time of certain earlier events, Mr. Goldrup was obliged to inform himself about what Ms. Livingstone’s evidence would be at trial. This endorsement set the backdrop for the plaintiff’s later motion seeking leave to examine a second corporate representative, namely Ms. Livingstone.

Motion to examine a second corporate representative

On August 13, 2024, Associate Justice McGraw considered the plaintiff’s motion under Rule 31.03(2)(b) of the Rules of Civil Procedure. That rule governs when a party may examine more than one representative of a corporation. Relying on the test articulated in Fischer v. IG Investment Management Ltd., which in turn draws on Baylis Estate v. Canada (Attorney General), the Associate Justice held that the moving party must show two things: first, that the discovery to which it is entitled cannot otherwise be obtained from the already-examined witness; and second, that there are special circumstances, such as the first witness being uninformed on material issues. Applying those principles, Associate Justice McGraw noted Mr. Goldrup’s brief tenure with the City during the period the plaintiff remained actively employed, and the much greater temporal and substantive overlap between the plaintiff and Ms. Livingstone. He was persuaded that Ms. Livingstone, who had attended a specific prior workplace complaint meeting with the plaintiff, held relevant information that could not be fully supplied by Mr. Goldrup. Concluding that the plaintiff’s examination of the City was incomplete, he granted leave to conduct a one-hour examination for discovery of Ms. Livingstone and authorized a hybrid process allowing up to two pages of written questions, expressly to address incompleteness and to respect proportionality, given Ms. Livingstone’s retirement and the significant time already spent examining Mr. Goldrup.

The appeal and applicable legal tests

The City appealed this interlocutory order to the Superior Court of Justice, arguing that Associate Justice McGraw had made palpable and overriding errors of fact and law, and errors of law, in granting leave to examine Ms. Livingstone. The appeal therefore turned on civil procedure and appellate standards of review rather than the merits of the underlying wrongful dismissal and discrimination claims. Both parties accepted that findings of fact are reviewable only for palpable and overriding error, while pure questions of law attract a correctness standard, and questions of mixed fact and law fall along a continuum as described by the Supreme Court of Canada in Housen v. Nikolaisen. The City contended that the Associate Justice misapplied the strict Fischer test for examining a second corporate representative and improperly relied on what he described as an agreement between counsel that the plaintiff would deliver, and Ms. Livingstone would answer, some written questions. It asserted that no such agreement had been reached and that, absent a transcript from the motion hearing, the trial judge should treat the reference as a material factual error tainting the order. The plaintiff, as respondent, argued that the Associate Justice correctly applied Fischer, that his assessment of discovery incompleteness was rooted in the record, and that his remedial order—one hour of oral discovery plus limited written questions—was carefully proportionate.

Court’s analysis of the legal and evidentiary issues

On appeal, Justice ten Cate focused first on whether the Associate Justice had properly applied the Fischer test to the facts. He accepted that the moving party must show both that discovery cannot otherwise be obtained from the first representative and that special circumstances exist, such as the first representative being uninformed on key issues. Reviewing the reasons, Justice ten Cate found that Associate Justice McGraw adequately addressed both elements: he recognized that Mr. Goldrup’s involvement with the plaintiff was recent and limited, while Ms. Livingstone had a longstanding managerial relationship with the plaintiff and direct involvement in a significant earlier workplace complaint meeting. Although the Associate Justice did not explicitly label Mr. Goldrup as uninformed or evasive, his reasoning implicitly recognized that there were areas on which Mr. Goldrup could not fully inform himself due to his short tenure and lack of participation in events predating his arrival. In Justice ten Cate’s view, these findings grounded the conclusion that the plaintiff’s examination of the City remained incomplete and that both branches of the Fischer test were satisfied. Justice ten Cate then addressed the City’s complaint about the reference to an agreement on written questions. The Associate Justice’s reasons stated that the parties had agreed that the plaintiff would deliver, and Ms. Livingstone would answer, some written questions. The City insisted this was incorrect but did not obtain or file a transcript to substantiate its position. Because the appellant bears the onus on appeal, Justice ten Cate held there was no evidentiary basis to contradict the sentence in the reasons. Even assuming that no agreement existed, he concluded that this point did not undermine the order because the Associate Justice had independently applied the correct legal framework under Rule 31.03(2)(b) and Fischer and had crafted his order based on the case-specific facts, not simply on any supposed agreement. Justice ten Cate further endorsed the Associate Justice’s application of proportionality. Limiting the oral discovery of Ms. Livingstone to one hour and capping written questions at two pages balanced the need to cure discovery gaps against concerns about time, cost, and the circumstances of a retired witness after lengthy prior discovery of another representative. In evaluating the use of a hybrid discovery process, Justice ten Cate found support in City of Hamilton v. Attorney General et al., where a hybrid discovery structure was used in litigation involving multiple public entities. He concluded that the same policy objectives—shortening discovery, reducing public cost, and simplifying evidence at trial—were engaged here, making the hybrid order reasonable and appropriate.

Outcome and next steps

Justice ten Cate dismissed the City’s appeal, holding that the Associate Justice had applied the correct legal principles under Rule 31.03(2)(b), made findings well supported by the record, and exercised discretion in a proportionate and efficient manner. The order of Associate Justice McGraw dated August 13, 2024, authorizing a one-hour examination for discovery of Ms. Livingstone and up to two pages of written questions, was confirmed. The decision left the question of costs unresolved in terms of specific dollar amounts. Instead, Justice ten Cate directed that, if the parties could not agree on costs, they should exchange brief written submissions on a set timetable, with no automatic right of reply. He also urged counsel to focus on completing discoveries, proceeding to mediation, and, if necessary, setting the matter down for trial with a timetable that reflects the fact more than five years had elapsed since the claim was issued, inviting them to seek further case-management assistance if needed. Overall, the successful party in this appeal is the plaintiff/respondent, Patricia Foto, who preserved her right to a focused follow-up discovery of Ms. Livingstone; however, no monetary damages or specific costs award was fixed or quantified in this decision, and the total amount ordered in her favour cannot be determined from the reasons alone.