TREVOR BRICE PLAINTIFF - v. –, 2023 SKKB 136

KING’S BENCH FOR SASKATCHEWAN Citation 2023 SKKB 136 Date: 2023 06 27 Docket: QBG-BF-00007-2020 Judicial Centre: Battleford BETWEEN: TREVOR BRICE PLAINTIFF - and – CITY OF NORTH BATTLEFORD DEFENDANT Counsel: Richard K. Gabruch for the plaintiff William Hampton for the defendant FIAT ZUK J. June 27, 2023 Introduction [1] The plaintiff [Mr. Brice] applies for an order directing the defendant, City of North Battleford, referred to as[the City] to provide further disclosure of documents by means of an amended or supplemental affidavit as to documents.

The Citycontends that the requested documents are not relevant to any of the legal issues raised in the pleadings and asks that the application bedismissed with costs. Background [2] Mr. Brice commenced an action against the City arising from the termination of his employment as FireChief. The City acknowledges that Mr. Brice was terminated without cause and contends that the only issues are the quantum ofdamages, if any, payable by the City in lieu of sufficient notice in the circumstances.

The City acknowledges that it may be liable foradditional damages related to the City’s conduct during the course of terminating Mr. Brice’s employment. [3] The City contends that Mr. Brice’s claim for damages to his character and reputation are not available as aseparate head of damage as set out in Peso Silver Mines Ltd. v Cropper, (SCC), [1966] SCR 673 (WL) at para 42 asadopted and followed in Honda Canada Inc. v Keays, 2008 SCC 39, [2008] 2 SCR 362 [Honda Canada] and Merrill Lynch Canada Inc. v Soost, 2010 ABCA 251, 322 DLR (4th) 42.

I accept the City’s argument that no separate head of damages lies for damage to care andreputation within the context of a claim for wrongful dismissal.

[ 4 ] The City contends that Mr. Brice’s claim for intentional or negligent infliction of mental suffering is not available in context of a claim for wrongful dismissal relying on Piresferreira v Ayotte , 2010 ONCA 384 , 319 DLR (4 th ) 665 .

I accept the City’s argument that the tort of negligent or intentional infliction of mental suffering is not available as a head of damage within the context of a claim for wrongful termination. [ 5 ] The City acknowledges that a court may award damages separate and apart from damages in lieu of notice where a plaintiff establishes that the employers conduct during the course of the employee’s termination was unfair or conducted in bad faith which includes being untruthful, misleading or being unduly insensitive ( see Honda Canada ).

In essence, a court may, in appropriate circumstances, award separate damages for the manner of dismissal rather than making an award extending the notice period. [ 6 ] In my view, Mr. Brice’s application hinges on whether the disclosure sought is both material and relevant to his claim for damages arising from the manner of his dismissal. [ 7 ] Mr. Brice seeks disclosure of documents relating to five separate areas, namely: 1) documents relating to the City’s investigation of two complaints filed against Mr.

Brice; 2) documents relating to his employment performance; 3) documents relating to the termination of Mr. Brice’s employment with the City; 4) Mr. Brice’s complete personnel file with the City; and 5) other files relating to investigations. [ 8 ] Mr. Brice was the subject of two complaints relating to his employment with the City. The City conducted an investigation which exonerated Mr. Brice. Mr. Brice seeks disclosure of the investigative files. The City takes the position that Mr.

Brice was terminated without reliance of just cause thereby rendering information obtained in the investigative courts irrelevant. [ 9 ] Although Mr. Brice did not frame his application in particularly precise terms, it appears that he seeks disclosure of the following documents as they relate to each of the five major document groups, as follows:

a) internal emails and correspondence;

b) internal reports;

c) city council meeting minutes;

d) administrative meeting minutes;

e) meeting notes;

f) resolutions;

g) interview transcripts and notes;

h) emails and correspondence with external sources;

i) external reports created by non-lawyers. The Law [ 10 ] Mr. Brice’s application is made pursuant to Rules 5-6 and 5-12 of The Queen’s Bench Rules : Form and content of affidavit of documents 5-6(1) An affidavit of documents must: (

a) be in Form 5-6; and (

b) disclose all documents relevant to any matter in issue in the action

(2) The affidavit of documents must also: (

a) specify which of the documents are in the possession, custody or control of the party on whose behalf the affidavit is made;

(

b) specify which of those documents, if any, the party objects to produce and the grounds for the objection; (

c) for those documents for which there is no objection to produce, contain a notice stating: (

i) the time when the documents may be inspected, which must be within 10 days after the affidavit is served; and (ii) the place where the documents may be inspected, which must be: (

A) the address for service of the party serving the affidavit; (

B) a place agreed on by the parties or ordered by the Court; or (

C) if the documents are in constant use, the place where they are usually kept; (

d) specify which documents relevant to any matter in issue the party previously had in the party’s possession, custody or control and: (

i) the time when, and the manner in which, those documents ceased to be in the party’s possession, custody or control; and (ii) the present location of the documents, if known; and (

e) specify that the party does not have and has never had any other document relevant to any matter in issue in the party’s possession, custody or control.

(3) If a party does not have and has never had any documents relevant to any matter in issue in the party’s possession, custody or control, the affidavit must say so. … Default in disclosure or production 5-12(1) A party desiring production of documents may apply to the Court for an order mentioned in subrule (2) if any party: (

a) has neglected, refused or objected to serve an affidavit of documents in accordance with this subdivision; (

b) has served an affidavit of documents that is not satisfactory to a party entitled to be served with that affidavit; (

c) has made a claim of privilege with respect to documents referred to in an affidavit of documents; (

d) having been served with a notice to produce documents pursuant to rule 5-11, has neglected or refused to produce any document mentioned in that notice; (

e) has neglected to give notice to inspect documents or, having given that notice, has neglected or refused:

(

i) to produce the documents for inspection; (ii) to permit the lawyer for the other party to make copies of the documents; or (iii) to furnish the lawyer for the other party with copies of those documents on payment of the proper fees; or (

f) has offered production at a place elsewhere than the address for service unless these rules provide for another place.

(2) In the circumstances mentioned in subrule (1), the Court may make any of the following orders: (

a) an order requiring the other party to produce documents; (

b) an order for further or better production of documents; (

c) an order for inspection; (

d) an order determining whether documents with respect to which privilege is claimed are in fact privileged. [ 11 ] Both parties rely on the decision of Scherman J. in Canadian National Railway v Clarke Transport Inc. , 2013 SKQB 394 , 432 Sask R 63 , where the court stated at paras. 16-22: [16] Former Rule 212 required the production of documents “ relating to any matter in question” while former Rule 222 permitted examination for discovery “ touching the matters in issue in the action” [emphasis added].

The broad scope of the words “relating” and “touching” resulted in the court adopting a broad relevance test to both the production and discovery obligations. [17] The Queen’s Bench Rules now provide that: i. The production obligation is to “ disclose all documents relevant to any matter in issue in the action”, Rule 5-6; and ii.

The questioning obligation is about information or documents “relevant to any matter in issue”, Rules 5-18 and 5-25. [18] I am satisfied that when this Court moved from the words of touching and relating to any matter in issue , it intended to move away from the broad relevance test that existed under the former Queen’s Bench Rules .

Concerns existed in Saskatchewan, as in other jurisdictions, that the broad relevance test did not strike a proper balance between the considerations of efficiency, timeliness in the conduct of litigation and cost control on the one hand with the counterbalancing interests of litigants and counsel in ensuring that all potentially relevant information was known. [19] This conclusion is reinforced by foundational Rule 1-3 which expressly provides that the purpose of the rules is to provide a means by which claims can be justly resolved in a court process in a timely and cost effective manner and that the rules are intended to be used to identify the real issues in dispute, to facilitate the quickest means of resolving a claim at the least expense and to provide an effective, efficient and credible system of remedies and sanctions to enforce the rules.

Proportionality and striking an appropriate balance are now essential considerations in all aspects of the Rules. [20] A commonly stated approach to the concept of relevance asks the question - Does the evidence offered, as a matter of logic and human experience, tend to prove or disprove a fact in issue? It needs to be noted that this iteration of relevance melds the distinct concepts of relevance and materiality into one omnibus concept of relevance that defines relevance by specific reference to a matter in

issue. [21] There are two components to this melded concept: i. The component of logical relevance. Does the proffered evidence tend as a matter of logic and human experience to prove ordisprove the fact or matter for which it is offered; and ii. The component of whether the fact or matter is in issue in the action. This is the distinct realm of materiality. [22] What determines whether a fact or matter is material are the elements of the cause(

s) of action and what the parties have pled asbeing the facts or their positions. Only if the matter is in issue in the action is the matter material, in a jurisprudential sense. If the matterqualifies as being material to the action, the next question is whether the evidence being proffered tends to prove or disprove the matterin issue. If the question does not relate to a matter in issue as particularized by the pleadings, then the matter is not relevant to any matterin issue. The Issue [12] Accordingly, the issue is whether the disclosure requested by Mr.

Brice is material to any issue raised in thepleadings and whether the material requested is relevant i.e., the information requested will increase or decrease the probability of a factin issue. 1) Documents relating to the City’s investigation of two complaints filed against Mr.

Brice [13] I am assisted in this analysis by reference to the decision in Maybee v Siemens Canada Ltd., 2019 SKQB 82[Maybee] where the court stated at paras. 52 and 53: [52] On the surface, the decision in Hill [Arcola School Division No. 72 v Hill (1999), (SK CA), 180 Sask R 256]would seem to suggest that all of the information pertaining to the investigation conducted by SCL is subject to litigation privilege,including the names of the investigators, the names of any witnesses contained in the report, and the names of any witnesses present atany meetings.

However, as I read the decision, a key factor in the Court of Appeal’s ruling was that the defendants had already disclosedthe names of all potential witnesses. Another important factor was that the insurance adjuster who investigated the matter would not be awitness at trial. [53] Those are different facts. In the case before me, it does not appear that the defendants have disclosed the names of all potentialwitnesses. In addition, the plaintiff has brought a claim for actionable misconduct in relation to the manner in which his employment wasterminated.

This means that the interaction between the investigator and the plaintiff, and the names of persons present at certainmeetings, and the subject matter of those meetings may well be relevant. [14] The Maybee decision was followed in Penner v Saskatchewan Health Authority, 2021 SKQB 242 [Penner]where the court stated at paras. 19 and 20: [19] The plaintiff also referred the Court to a number of cases where the heart of the disclosure dispute respecting pre-dismissalinvestigation related documents was whether they were protected by litigation privilege, not relevance.

In those cases it is reasonable toinfer that the parties, and the Court, had no doubt that the documents were materially relevant to the claim: see Mabee v Siemens CanadaLimited, 2019 SKQB 82 [Mabee], Strength of Two Buffalo Dale v Canada, 2020 ONSC 2926 at paras 25 and 27, Guthrie v St. JosephPrint Group Inc., 2018 ONSC 1411 at para 9.

Further, in Mabee at para 53, Kalmakoff J. (as he then was) specifically held thatinteractions between an investigator and the plaintiff, as well as the names of persons present at certain meetings and the subject matterof those meetings, may well be relevant where a plaintiff has brought a claim for damages relating to the manner in which hisemployment was terminated. [20] In short, documents that inform the contextual and proportional analysis are materially relevant to the determination of liability.Similarly, where there is a claim for damages arising out of the manner in which the employment was terminated, as there is in this case,documents relating to the decision to terminate are relevant. [15] In essence, the court in Maybee and Penner concluded that the disclosure of documents relating to investigationsconducted by the employer and documents relating to the decision to terminate an employee were relevant to the employee’s claim fordamages arising from the manner of dismissal rather than the dismissal itself. [16] I recognize that the defendants (the employers) were relying on the defence of just cause in both Maybee and

Penner. In the present case, the City acknowledges that Mr. Brice’s dismissal was made without just cause. However, the employer’sconduct in the course of dismissing an employee is not limited to cases in which just cause for dismissal is raised as a defence by thedefendant. An employer’s course of conduct in dismissing an employee may contain elements of bad faith whether the dismissal is forjust cause or without just cause. [17] Accordingly, the documents relating to the two complaints made against Mr.

Brice are to be disclosed including,but not limited to, the documents listed in paragraph 9(a)–(i). 2) Documents relating to his employment performance [18] Mr. Brice does not clearly identify the specific documents that may relate to his employment performance thatwould not otherwise be contained within his personnel file or the investigative files respecting the two complaints made against Mr.Brice or as contained in documents relating to the termination of his employment. The City contends that Mr.

Brice’s employmentperformance is not material or relevant to the issues raised in the pleadings since the City acknowledges that it terminated Mr. Brice’semployment without cause. Mr. Brice contends that the documents may be relevant to the general common law duty of honesty in theperformance of all contracts, including employment contracts which creates a duty on parties not to lie or mislead the other party (seeBhasin v Hrynew, 2014 SCC 71, [2014] 3 SCR 494). [19] The law is clear that there is a duty of good faith in the employment context.

In Avalon Ford Sales (1996)Limited v Evans, 2017 NLCA 9, the Newfoundland Court of Appeal confirmed that employment contracts are subject to the principle ofgood faith and fair dealing at paras. 17 and 18: APPLICABLE LAW [17] The Supreme Court has held that all contracts, including employment contracts, are subject to the organizing principle of goodfaith and fair dealing (Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494). Even prior to Bhasin, the Supreme Court had recognized aduty on an employer to act in good faith when terminating an employee (Wallace v.

United Grain Growers Ltd., (SCC),[1997] 3 S.C.R. 701; Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 SCR 362).

In Bhasin, the Supreme Court explained severalways in which the organizing principle of good faith has been applied in contract law and the nature of the duty it creates in theemployment context: [53] …. [C]ommon law Canadian courts have also recognized that there are classes of relationships that call for a duty of good faith tobe implied by law. [54] For example, this Court confirmed that there is a duty of good faith in the employment context in Honda Canada Inc. v.Keays, 2008 SCC 39, [2008] 2 S.C.R. 362….

The majority held that in all employment contracts there was an implied term of good faithgoverning the manner of termination. In particular, the employer should not engage in conduct that is “unfair or is in bad faith by being,for example, untruthful, misleading or unduly insensitive” when dismissing an employee: para. 57, citing Wallace v. United GrainGrowers Ltd., (SCC), [1997] 3 S.C.R. 701, at para. 98.

Good faith in this context did not extend to the employer’sreasons for terminating the contract of employment because this would undermine the right of an employer to determine the compositionof its workforce: Wallace, at para. 76. [18] In paragraphs 56-57 of Honda Canada, citing the Wallace decision, the Supreme Court described that damages may flow froma breach of the term of good faith as follows: … The contract of employment is, by its very terms, subject to cancellation on notice or subject to payment of damages in lieu of noticewithout regard to the ordinary psychological impact of that decision.

At the time the contract was formed, there would not ordinarily becontemplation of psychological damage resulting from the dismissal since the dismissal is a clear legal possibility. The normal distressand hurt feelings resulting from dismissal are not compensable.

Damages resulting from the manner of dismissal must then be available only if they result from the circumstances described in Wallace,namely where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example,untruthful, misleading or unduly insensitive” (para. 98). (Emphasis added.) [20] Although the City admits that Mr. Brice’s employment was terminated without cause and contends that the onlyissue is a quantum of damages, Mr. Brice claims that the City is liable in damages respecting the manner of his dismissal.

The issue iswhether documents relating to Mr. Brice’s employment performance are material and relevant to Mr. Brice’s claim based on the mannerof his dismissal. [21] The court is faced with a difficult balancing act when dealing with an application for disclosure in which theapplicant is unable to identify specific documents sought to be disclosed.

The applicant may not have personal knowledge of theexistence of specific documents and is limited to simply alleging that a file may contain documents that are relevant to a matter in issue.Conversely, the respondent may allege that the application is merely a fishing expedition by the applicant made in an attempt to obtaindocuments that may give rise to a legal claim. In J-Sons Inc. v N.M. Paterson & Sons Ltd., 2003 MBQB 199, 178 Man R (2d) 167 thecourt stated as follows: [2] The test as to what documents are required to be produced is that of relevance.

Relevance is normally measured by an examinationof the issues raised in the pleadings. At the very least, for a document to be relevant, the party seeking production ought to be able toarticulate a theory as to how that document might help its case or damage the case of the opposite party.

[3] While it has been said that the threshold for determining the question of relevance is a low one, the court should nevertheless not countenance fishing expeditions. If counsel cannot articulate a reasonable theory upon which the documents to be discovered are relevant, then the documents should not have to be produced. Litigants should not be deterred from prosecuting or defending an action by unnecessary discovery. [ 22 ] A balance must be struck between an order appropriately providing disclosure to a litigant versus granting an order that would simply be permitting a fishing expedition.

Each application must be decided with reference to the issues raised in the pleadings, the evidence provided by the applicant establishing a reasonable likelihood that the requested disclosure will reveal documents that are relevant and material to those issues. [ 23 ] A court must remain mindful that mere disclosure of the document does not necessarily lead to the admission of that document as evidence at trial. The trial judge remains the gatekeeper to ensure that any document disclosed is admissible as evidence.

A party disclosing the existence of a document may still claim privilege or other permitted basis to avoid having to disclose the document during the disclosure stage or object to the admissibility of the document at the trial stage. [ 24 ] Documents relating to Mr. Brice’s work performance may cast light on factors that may have motivated the City to dismiss him without just cause, which in turn, may provide context to assess whether the City breached its duty to act in good faith respecting the manner of the dismissal. [ 25 ] Accordingly, I conclude that documents relating to Mr.

Brice’s employment performance may contain information relative to whether the City acted in good faith in the course of terminating Mr. Brice’s employment. Although the City did not dismiss Mr. Brice for cause, documents may exist relating to his employment performance that are material and relevant to the manner of dismissal. It is difficult to distinguish between ordering disclosure of investigations ( see Maybee and Penner ) and documents relating to a plaintiff’s employment performance. [ 26 ] I see no reason to distinguish between an investigative report and employment performance records.

It is equally, likely that documents relating to employment performance are relevant to the manner of dismissal as are documents contained within investigative reports. Accordingly, documents relating to Mr. Brice’s employment performance shall be disclosed including, but not limited to, documents described as paragraph 9(a)-(i). 3) Documents relating to the termination of Mr. Brice’s employment with the City [ 27 ] There can be little argument that the documents relating to an employee’s termination are relevant to whether the City acted in good faith in dismissing Mr. Brice ( see Penner at para 20 ). Mr.

Brice is seeking damages respecting his employer’s conduct in the course of dismissal. An employee is entitled to assess information received by an employer or documents generated by an employer in the course of the dismissal. The information and documents may then be reviewed in relation to the reasons given for the dismissal, if any, by the employer to the employee to gauge whether the employer acted in good faith in dismissing the employee. Accordingly, the documents relating to Mr. Brice’s termination as set out in paragraph 9(a)-(

i) shall be disclosed. 4) Mr. Brice’s complete personnel file with the City [ 28 ] The court has not been provided with a means of identifying the City’s personnel file with respect to Mr. Brice. The applicant has not provided the court with a file number or even a definition of a “personnel file”. The contents of a personnel file will likely differ from employer to employer. However, a personnel file would normally include all records relating to an employee’s employment with the employer. All of the documents sought by Mr.

Brice may be contained in his personnel file or his file may contain scant information respecting his employment with the City. The City may have created several individual files all of which relate to Mr. Brice’s employment with the City. [ 29 ] The documents that may be relevant to an employer’s course of conduct in terminating an employee are potentially diverse. There can be no clear definition given for describing documents that may give rise to evidence of bad faith. Just as bad faith takes many forms, so do the documents that may provide evidence of bad faith.

The type of documents which would normally be contained within an employee’s personnel file are an obvious source of documents that may shed light on an employer’s motives in dismissing an employee or otherwise shed light on the manner in which an employee was dismissed. Accordingly, the City is directed to disclose Mr. Brice’s personnel file and any additional files containing relevant employment related material including but not limited to the documents identified in paragraph 9(a)-(i). 5) Other files relating to investigations [ 30 ] Mr.

Brice seeks an order directing that the City disclose “other files” relating to investigations conducted by the City in relation to Mr. Brice. This disclosure request is vague and uncertain and has the hallmarks of a fishing expedition rather than a focused request for disclosure of documents that may exist which may be relevant and material to the issues at hand. In Llewellyn v Hughes , 2008 MBCA 136 , 231 Man R (2d) 184 the court considered a broad test for relevancy based on the issues identified in the pleadings. The court noted that a document may be relevant but not necessarily admissible evidence at trial.

The court stated at para. 7: 7 What documents may or may not be producible will be determined from the pleadings. The onus is on each party to produce those documents in their possession which may be relevant. The fact that a document may be relevant does not necessarily mean that it would be admissible in evidence. The admissibility and weight of such documentation will, of course, have to be considered by the trial judge. [ 31 ] Mr. Brice casts too wide a net as he has failed to identify any specific file and type of file or even any investigation under this heading.

For those reasons his application for disclosure of “other files” relating to investigations is dismissed.

Conclusion [ 32 ] The City shall, within 30 days serve the plaintiff with either an amended or supplementary affidavit as to documents in accordance with this fiat. This is an appropriate circumstance to bifurcate Mr. Brice’s disclosure application to permit the City to raise a claim for privilege relating to any of the disclosed documents. While the applicant has met the first hurdle establishing that the documents requested are both material to issues raised in the pleadings and relevant to those issues, the court cannot address the City’s claim for privilege of any of the documents in a vacuum.

The documents must first be identified following which the City may claim privilege in relation to any of the newly disclosed documents. Any contest arising from the City’s claim for privilege is properly the subject of a separate application. This was the process followed in the Penner decision and one which I will follow in the present case. Accordingly, the City’s claim for privilege for any documents ordered disclosed is adjourned sine die to be returned to chambers on 14 days notice by either party.

Costs [ 33 ] The matter of costs shall be determined at the conclusion of the hearing with respect to the City’s claim for privilege. J. L.W. ZUK