Executive Summary: Key Legal and Evidentiary Issues

• Timeliness and leave requirements for bringing refusals and production motions after a Rule 76 action has been set down for trial and placed on the trial list
• Whether discovery-related relief that would necessitate adjourning a fixed trial date should be granted when the information sought is not truly critical to a fair trial
• The scope of a defendant employer’s production obligations regarding records of non-party corporations alleged to be “related” or “associated” employers under s. 4 of the Employment Standards Act, 2000
• Proportionality of further discovery in a simplified procedure wrongful dismissal action focused on unpaid commissions and ESA notice and severance
• Adequacy of the defendant’s existing productions concerning total payroll, commission calculations, and customer shipment data for the purpose of trial
• The court’s discretionary power to refuse late discovery motions and rely instead on trial remedies (such as adverse inferences or remedial orders) where there are delays, timetable breaches, and marginal additional probative value

Background and facts of the dispute

This case arises from a wrongful dismissal action brought by Igor Marincic against his former employer, Starvoy Technologies Inc., under Rule 76 of the Ontario Rules of Civil Procedure. The action, commenced in July 2023, is a simplified procedure matter involving a relatively modest quantum of damages and an expectation of a streamlined, cost-effective process. The plaintiff has abandoned any claim for common law reasonable notice damages. The live issues at trial are now confined to unpaid commissions and the plaintiff’s entitlement to notice and statutory severance under the Employment Standards Act, 2000 (ESA). At the heart of the severance claim is whether Starvoy is part of a group of “related” or “associated” employers whose combined payroll exceeds $2.5 million, the statutory threshold in s. 64 of the ESA for severance pay. Starvoy’s own payroll does not reach that threshold, but the plaintiff alleges that Starvoy is related to Motion Micro Solutions, J Squared, Mazin Properties and Mazin Investments. The defendant admits a relationship only with Motion Micro Solutions and denies that the other companies are related or associated within the meaning of s. 4 of the ESA. The plaintiff says his work often benefitted more than one of these entities, and he relies on various indicia of a “single business” operation, such as shared ownership, common premises, and service relationships. The corporate structure, however, is contested and none of the other corporations have been named as defendants or non-party respondents in any production motion.

Procedural history and Rule 76 context

The case proceeds under Rule 76, which is designed to achieve early disclosure, limited discovery, and a trial of no more than five days, with evidence in chief primarily introduced by affidavit. The policy objective is to facilitate proportional, efficient litigation of smaller claims, with parties expected to narrow issues, make admissions where appropriate, and avoid unnecessary evidentiary battles. The plaintiff set the action down for trial on October 13, 2023 by filing Form 76C, thereby certifying readiness for a pre-trial conference and trial. Rule 76.09 contemplates that a plaintiff in a Rule 76 action will be ready to proceed to trial within approximately six months of receiving the defence, and nothing in the rule permits parties to treat a notice of readiness as a mere formality.

Discoveries, refusals, and undertakings

Despite the action being set down, the parties proceeded in a cooperative manner and conducted examinations for discovery on May 22, 2024. Undertakings were given and questions refused, but no immediate discovery motion was pursued. Under the governing discovery rules, refusals, unfulfilled undertakings, and unanswered advisements can all be treated as refusals, with several potential consequences. These include the automatic consequence that a party who refuses to answer a proper question may not introduce withheld information at trial without leave, the possibility of an adverse inference if a party appears to have suppressed relevant evidence, and the availability of court sanctions under Rule 34, including orders to re-attend at examination and answer specific questions, or in extreme cases, striking a pleading. In this case, Associate Justice Fortier issued a timetable in September 2024, fixing a date for answering undertakings (October 11, 2024) and setting a deadline for any motions arising out of discoveries. Later, on October 10, 2024, a five-day summary trial was fixed to begin on January 12, 2025. These steps reinforced the expectation that the parties were preparing to proceed to trial within a defined schedule and that any disputes about discovery would be addressed promptly.

The late motion for production, answers and adjournment

The plaintiff ultimately brought a motion seeking production, answers to refused questions, and an adjournment of the trial. The notice of motion was served in March 2025, but a hearing date was not properly secured until much later, and one attempt at scheduling was adjourned sine die because it had not been cleared with opposing counsel. At a Trial Management Conference on November 19, 2025, Justice M. Smith directed that the plaintiff’s motion materials be delivered on an urgent basis and that the motion should require only an hour of hearing time. Importantly, Justice Smith did not decide whether leave was required nor did he grant leave to bring the motion after the matter had been set down and placed on the trial list. By the time the motion came before Justice MacLeod RSJ, the trial date was approaching and the parties had already gone through several case management steps and timetables. The motion record itself was unwieldy, consisting of hundreds of unbookmarked pages in a single PDF with the factum buried inside, a lack of a clear refusals and undertakings chart, and limited use of modern electronic presentation tools. The judge noted that the combination of timing, inefficiency, and volume left no practical alternative but to reserve on the motion and adjourn the trial from January to May, despite the broader expectation that Rule 76 actions should proceed expeditiously.

Legal framework for leave and late discovery motions

A central legal issue was whether leave is required to bring a refusals and production motion after an action has been set down for trial under Rule 48.04, and after a trial date has been fixed and the matter placed on the trial list under Rule 48.07. While there are decisions suggesting that leave is not required for such motions, the judge preferred and adopted the line of authority holding that leave is generally necessary once a matter has been set down. Even if leave were not technically required, the judge emphasized that motions brought late in the day, especially those that could require adjournment of a fixed trial date, attract a discretionary gatekeeping function grounded in Rule 1.04 and the objectives of Rule 76. A party seeking late discovery relief must show that the information sought is truly critical to a fair trial and that the motion could not reasonably have been brought earlier. Where timetables have been set and trial dates fixed, further leave considerations arise: missing timetable deadlines and waiting until the eve of trial to seek extensive production weigh heavily against granting such relief. In this case, the judge found that leave was required either under Rule 48.04 or by reason of the missed timetable deadlines and the subsequent placement of the action on the trial list. He also underscored that, even if he were wrong about the technical need for leave, the court retained a broad discretion to decline to order additional production or compel further discovery immediately before trial, particularly in a streamlined Rule 76 proceeding.

The specific production and discovery requests

On the substance of the motion, the plaintiff sought payroll records and other documents from J Squared, Mazin Investments, and Mazin Properties, as well as further detail about Starvoy’s own payroll, sales, customer accounts, and commissions. These requests were framed as necessary to prove that the various corporations were “related” for ESA purposes and to support the plaintiff’s claim to severance and additional commission entitlements. The defendant’s principal, Mr. Gibson, is a shareholder of Starvoy and the principal shareholder of the other entities, and it was admitted that Mazin Properties is Starvoy’s landlord and that one Mazin entity provides payroll services. The defendant also conceded that Motion Micro Solutions is related, but asserted that Motion Micro has no employees and no payroll. Starvoy, for its part, had produced tax records showing its total payroll, as well as documents used to calculate the plaintiff’s commissions. It maintained that it did not control, and could not produce, payroll records for J Squared, Mazin Properties, or Mazin Investments, and that no undertaking had ever been given to obtain those documents. Justice MacLeod accepted this position, concluding that it was not reasonable to order Starvoy to produce documents that either did not exist (in the case of Motion Micro) or were owned and controlled by separate, non-party corporations. With respect to Starvoy’s own payroll detail, the judge considered that drilling into the inner particulars of payroll records was not relevant beyond the aggregate figures already provided, given the narrow issues left for trial.

Commission records and proportionality

A further category of documents sought concerned reports showing all orders placed by customers during the relevant period, whether or not those orders were ultimately fulfilled or cancelled. The plaintiff argued that such data was relevant to his commission claim. The defendant responded that it had already produced customer shipment reports and that commissions were calculated and paid solely on fulfilled shipments, not on orders that were never completed. The judge acknowledged that, had the motion been brought in a timely fashion, the court might have been persuaded to order broader production of order-level data, because the documents were within the defendant’s possession, power, or control and had at least some potential relevance. However, he also emphasized that such an order might have been rejected even then as disproportionate given the nature, size, and scope of a Rule 76 action. Ultimately, he concluded that these additional records were not essential for a fair trial. Starvoy had already produced documents that demonstrated the commissions the plaintiff would be owed if he were found entitled to severance, and any residual concerns about missing or concealed evidence could be managed at trial. The trial judge would retain a range of remedial tools, including drawing an adverse inference or fashioning other orders if it appeared that crucial information had been withheld. Against that backdrop, in light of the lateness of the motion, the impact on a fixed trial date, and the relatively marginal incremental value of the requested records, further production was refused as disproportionate and unnecessary.

Outcome and implications of the decision

In the result, the court dismissed the plaintiff’s motion. Justice MacLeod held that leave was required to bring the motion in light of Rule 48.04 and the missed timetable deadlines, and that, even if leave were not technically necessary, the court had and should exercise a discretion to refuse late discovery relief that would disrupt a fixed Rule 76 trial without delivering truly critical information. He further found that the specific records sought were either outside the defendant’s control, non-existent, or of limited incremental value when considered against what had already been produced. Taking into account the summary nature of the proceedings and the narrow questions to be decided—wrongful dismissal now reduced to statutory ESA entitlements and commissions—the judge characterized the additional evidence sought as disproportionate and unnecessary. The motion for production, answers to refusals, and adjournment was therefore dismissed, and the trial was directed to proceed as scheduled. On this motion, the successful party is the defendant, Starvoy Technologies Inc. The endorsement does not award any damages or fix any specific amount for costs; instead, the judge invites brief written or oral submissions on costs or leaves it open for the parties either to agree on costs or to defer the issue to the trial judge. Accordingly, while the defendant prevails procedurally on this motion, the total monetary award or costs in its favour cannot be determined from this decision alone.