In Ferguson v. Yorkwest Plumbing Supply Inc., 2022 ONSC 4792, an employee who commenced a wrongful dismissal action via Ontario’s Simplified Procedure rules was granted an order striking the employer’s statement of defence after the employer continuously put up roadblocks regarding its attendance at examination for discovery,¹ and then insisted that the employee examine it first. This order of examination demanded by the employer was not in accordance with the employee’s notice of examination. (By serving the notice of examination first, the employee had preserved its right to set the order of discoveries).

Background

The employee began her employment with the employer in October 2015. The employer terminated the employee’s employment with one week’s notice in March 2017 alleging cause related to performance.

The employee commenced a wrongful dismissal action using the Simplified Procedure rules in August 2018 for payment in lieu of reasonable notice and for unpaid commissions. The parties conducted a mediation in July 2021 but they did not settle. The employee’s lawyer then attempted to arrange to examine the defendant for discovery but its efforts were unsuccessful as employer’s counsel continuously put up roadblocks. For example:

• Emails attempting to set up discovery dates were ignored by defence counsel;
• Long after notices of examination of the employer for a specific date were sent and only a few days before the scheduled examination dates, defence counsel advised...

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