March 2, 2020

The termination of one’s employment is often unexpected and, when it occurs, is typically effective immediately.  Even further from an employee’s mind is the contemplation of litigation following a termination.

As such, by the time the terminated employee meets with a lawyer to discuss the prospects of a wrongful dismissal lawsuit, they no longer have possession of, or access to, any of the company’s records, including emails, policies, and financial information.  That is why, upon the commencement of a lawsuit, the employee needs to ensure that their former employer provides any and all relevant information regarding the employee’s tenure and subsequent termination. Otherwise, they risk being unable to prove the merits of their case on the basis of a lack of clear evidence.

This issue was recently discussed at a motion before Master Muir, in the decision of Gamble v. Black McDonald Limited, 2020 ONSC 811 (“Gamble”).

In Gamble, the plaintiff brought the motion seeking an order requiring the employer to serve a further and better affidavit of documents, which is a set of relevant documents produced by either side in relation to the matter at hand.   In Gamble, while the employer had produced an affidavit of documents, the plaintiff was not satisfied.

Master Muir applied well-known principles when seeking a further and better affidavit of documents, which are as follows:

  • Documentary discovery is an important tool in the litigation process;
  • The initial decision about what documents to produce is generally left up to the parties;
  • A motion seeking a further and better affidavit of documents is proper where there is evidence of missing documents;
  • Evidence that simply amounts to intuition, speculation and guesswork, however, is insufficient to justify an order for the service of a further and better affidavit of documents; and
  • There must be evidence that specific documents exist that have not been produced.

A party who simply speculates as to the existence of further information will be unable to convince a court to order the production of a better affidavit of documents.  This is precisely what occurred in Gamble.

Gamble is illustrative of an individual’s need to establish the existence of documents by more than mere guesswork or speculation.  Requests ought to be pointed and in reference to relevant documents that either come out of the pleadings and/or through the discovery process.

As employers often hold the bulk of the information in wrongful dismissal cases, it is critical that employees canvass these documentary issues as early as possible, while also ensuring that the information in question is relevant vis-à-vis the Statement of Claim and discovery process.  Failure to do so will result in more of a “he said she said” case, where credibility is paramount and the outcome is much less certain.