Executive Summary: Key Legal and Evidentiary Issues

• Scope of a dismissed employee’s obligation to disclose all arguably relevant mitigation documents under the Simplified Procedure, including EI records, resumes, and job search materials.
• Adequacy of the plaintiff’s Affidavits of Documents in light of a discovery plan that required “full disclosure” of all arguably relevant documents, particularly those relating to mitigation efforts.
• Whether a “trickle” of post-pleading productions and late disclosure of EI and pay records supports an inference that earlier assertions of having no such documents were inaccurate or incomplete.
• Interaction between limited examination rights under Rule 76 and the need for complete documentary disclosure in advance of discovery, to avoid prejudice to the defendant’s ability to test mitigation.
• Application of the test for ordering a further and better Affidavit of Documents, including the requirement that the moving party show, on a balance of probabilities, that additional documents likely exist.
• Consequences of a plaintiff’s failure to provide sworn evidence detailing search efforts for relevant documents, and the court’s willingness to compel a more comprehensive documentary search and affidavit.

Background and employment relationship

This case arises from a wrongful dismissal action brought by David Handy, a DEF truck driver, against his former employer, M&C Investments Incorporated, a company engaged in the distribution of petroleum products. Mr. Handy’s employment was terminated on November 13, 2024. The underlying dispute, which will be resolved at a later stage, concerns whether his dismissal was wrongful, whether an employment agreement termination clause is enforceable, and what damages, if any, he is entitled to receive. The matter proceeds under Ontario’s Simplified Procedure, with Mr. Handy’s total damages claim approximated at $240,000, plus unquantified special damages for job search and potential relocation expenses.

Pleadings and issues in dispute

In his Statement of Claim, Mr. Handy pleads that he has attempted to mitigate his damages by seeking other reasonably comparable positions and that he claims his job search and relocation expenses as special damages, with particulars to be provided before trial. The Defendant, M&C Investments, denies the wrongful dismissal allegations and specifically raises mitigation in its Statement of Defence, asserting that if Mr. Handy is entitled to damages, he ought to have taken reasonable steps to limit his loss and could have done so by finding comparable work. Thus, mitigation and the adequacy of Mr. Handy’s efforts to seek new employment are central issues. While the merits of the termination and the enforceability of any contractual termination clause are not decided in this endorsement, they form the substantive backdrop to the procedural motion about disclosure.

Discovery plan and initial documentary disclosure

Following the close of pleadings, the parties attempted to settle a discovery plan. The Defendant sought explicit wording obligating Mr. Handy to provide proof of all mitigation efforts. Mr. Handy refused that specific language, but the parties ultimately executed a Discovery Plan on June 23, 2025, which adopted a general provision that each side would abide by a policy of full disclosure and would list “all documents which are arguably relevant to this proceeding” in their Affidavits of Documents. Before that plan was finalized, Mr. Handy served an Affidavit of Documents on May 22, 2025, which contained no documents addressing mitigation. He then served a Notice of Examination for July 23, 2025. The Defendant insisted on a finalized discovery plan and raised concerns that the Plaintiff’s Affidavit of Documents had to be signed and complete, including all relevant documents, consistent with the Rules of Civil Procedure and the emerging discovery plan.

Supplementary affidavits and “trickle” disclosure

After the Discovery Plan was signed, the Defendant served its Affidavit of Documents on August 21, 2025. On August 22, 2025, Mr. Handy delivered a Supplementary Affidavit of Documents. It contained a “mitigation efforts” tab with only a simple log listing six jobs he said he applied for in November 2024, and no accompanying documentation (such as postings, applications, or correspondence). Defense counsel wrote on September 25, 2025, pointing out that the Plaintiff had not provided a resume, any evidence of Employment Insurance (EI) applications, collections or payments, no corroborating material about jobs applied for or outcomes, and no records of any work, self-employment, contracts, or other income in the alleged notice period. Counsel stated the Defendant would not proceed to examinations until it received proper documentation as required by the Rules and the Discovery Plan. Mr. Handy’s counsel responded that the documents already provided were all they had and that additional materials, especially regarding EI, could be explored in oral discovery. On September 26, 2025, EI payment records were produced, but not incorporated into a sworn Affidavit of Documents. Plaintiff’s counsel also advised that there were no written contracts or email confirmations of mitigation efforts because everything was “verbal,” and maintained that questions and undertakings at discovery would suffice.

Subsequent developments: non-attendance, further supplementary affidavit, and new employment

On September 29, 2025, Mr. Handy attended for discovery and obtained a certificate of non-attendance because the Defendant did not appear, having persisted in its position that examinations should not proceed without proper documentary disclosure on mitigation. On October 14, 2025, Mr. Handy served a Supplementary Supplementary Affidavit of Documents attaching a resume. Later, around October 23, 2025, his counsel advised the Defendant that Mr. Handy had secured new employment but provided no documentation relating to his application, hiring process, or the terms of his new role. Again, Plaintiff’s counsel indicated such information could be addressed in oral discovery and any subsequent undertakings, rather than in advance by way of documentary production. The Defendant then attended Triage Court on November 13, 2025, where it obtained leave to bring the present motion for a further and better Affidavit of Documents. Meanwhile, on January 9, 2026, Mr. Handy provided his counsel with employment pay statements from his new job. Those pay statements were exhibited to an affidavit sworn by a clerk in Plaintiff’s counsel’s office as part of the Plaintiff’s responding motion record, just days before the hearing, but again were not included in any sworn Affidavit of Documents by Mr. Handy himself.

Governing legal principles on affidavits of documents

The court restates the basic duty of civil litigants under the Rules of Civil Procedure: each party must disclose, to the full extent of their knowledge, information, and belief, all documents relevant to any matter in issue that are or have been in their possession, control, or power. Under Rule 76 (Simplified Procedure), this obligation is codified in subrule 76.03(1), which requires comprehensive disclosure via affidavit of documents. In preparing such an affidavit, a party must conduct a diligent search for relevant materials and swears, in effect, that those efforts have been made. On a motion seeking a further and better Affidavit of Documents, the moving party must establish, on a balance of probabilities, that the requested documents exist before the court will order their disclosure. The court adopts the approach in Mitrex Inc. v. Wilson and Galea v. Best Water Limited, which emphasize that while the evidence cannot rest on speculation, the proof standard is informed by the asymmetry of access: the party seeking production does not control the documents, whereas the responding party does. The decision also relies on Dawkins v. Precision Resource Canada Ltd., another Simplified Procedure wrongful termination case involving a trucking worker, where a similar “trickle” of delayed disclosure justified an order for a better affidavit of documents when initial assertions of non-existence were later shown to be inaccurate.

Mitigation as a live issue in wrongful dismissal

The court confirms that mitigation is clearly a live issue. In wrongful dismissal cases, the employer bears the burden of demonstrating that the employee failed to take reasonable steps to find comparable employment and that had such steps been taken, the employee would likely have secured a reasonably suitable position. The standard is not perfection but reasonableness in job search efforts, as discussed in authorities such as Boyle v. Salesforce.com and Pateman v. Koolatron Corporation. The Plaintiff himself has put mitigation in play by pleading efforts to find comparable employment and by claiming special damages for job search and relocation expenses, which heightens the importance of clear, timely, and complete mitigation-related disclosure.

Court’s analysis on the adequacy of disclosure

The Associate Justice concludes that the Defendant has met the test for ordering a further and better Affidavit of Documents. Several factors are decisive. First, Mr. Handy has already sworn three Affidavits of Documents, the first omitting any mitigation material, the second containing only a bare six-entry log, and the third adding only a resume. Second, important mitigation-related records—most notably EI documentation and evidence of new employment and pay—surfaced only after repeated requests and, in the case of the pay statements, only in the responding record for this motion, not through a sworn affidavit of documents from Mr. Handy. This pattern of incremental, reactive disclosure suggests that the Plaintiff has not yet performed the diligent and comprehensive search required either by the Rules or by the Discovery Plan’s “arguably relevant” standard. Third, Mr. Handy filed no personal affidavit on the motion explaining what search was actually conducted. There is no evidence as to why EI and other records were not discovered and listed in earlier affidavits or why documentation about his new employment has still not been produced in any formal way. The court rejects the Plaintiff’s position that questions about mitigation can simply be deferred to oral discovery, with undertakings to follow. In the Simplified Procedure context, examinations are strictly time-limited, and further discovery requires leave of the court. That leave is to be granted sparingly and only when the interests of justice warrant it, as recognized in cases such as Keedi v. Wawanesa Mutual Insurance Company, Blue v. Metro Ontario Inc., and Leask v. Homewood Health Centre Inc. If examinations proceed without full mitigation disclosure, the Defendant reasonably fears it may lose the chance to question on documents produced only afterward, or be forced to seek additional discovery in a regime that discourages it. The court finds that this concern is legitimate and that it undercuts the Plaintiff’s proportionality and harassment arguments. Drawing on the reasoning in Dawkins, the Associate Justice also finds it reasonable for the Defendant to decline to proceed with examinations until documentary discovery is complete.

Relief ordered, costs, and next steps

Having accepted that additional mitigation-related documents likely exist or are under the Plaintiff’s control or power, the court orders Mr. Handy to conduct a thorough search for all physical and electronic records relating to his mitigation efforts during the relevant notice period. He is directed to serve a further and better sworn Affidavit of Documents setting out all arguably relevant documents, including all records concerning EI, job applications, job search efforts, and his new employment, within 30 days of the order. The court declines the Defendant’s request for an express order authorizing it to rely at trial or on any summary judgment motion on negative inferences if Mr. Handy fails to comply, noting that no such order is necessary for the Defendant to advance such arguments later. On costs, both parties seek their costs of the motion and provide outlines, but the court does not fix an amount. Instead, the parties are encouraged to settle costs; if they cannot, costs submissions are to proceed in writing on a brief timetable, with no reply. Finally, the matter is to return to Triage Court, as previously directed by another judge, to set a timetable for the remainder of the action, with the parties expected to agree a proposed schedule and requisition that attendance. In procedural terms, the successful party on this motion is M&C Investments Incorporated. No damages or costs amount is actually quantified or awarded in this endorsement, so the total monetary sum ordered in favour of the successful party cannot be determined from this decision.