Executive Summary: Key Legal and Evidentiary Issues

• Scope and application of Rule 31.10 for leave to examine a non-party witness in a wrongful dismissal action.
• Relevance and materiality of evidence about other employees’ harassment complaints to claims for moral and punitive damages.
• Impact of an NDA preventing a willing former executive/HR head from giving evidence, and the court’s power to overcome that barrier.
• Defendant’s limited disclosure, redactions, and refusals regarding prior complaints, and whether that amounts to an actual or constructive refusal to provide evidence.
• Fairness considerations in allowing non-party discovery where the information is otherwise unavailable and central to the plaintiff’s damages claims.
• Case management concerns: whether a targeted non-party examination will delay trial, increase costs, or instead promote efficient resolution of the proceeding.

Background and employment context
Aly Kachra was employed by OPSEU Pension Trust (OPTrust) as Director of Investment Risk from April 2017 until his dismissal on 9 January 2020. He commenced a wrongful dismissal action against OPTrust, alleging that his termination followed and was connected to his complaints about workplace harassment and reprisal by his direct manager, Mr. Hudacin. The motion decided in this ruling concerns pre-trial discovery, not the ultimate merits of the dismissal claim.

Allegations of harassment and reprisal
According to the amended statement of claim, Mr. Kachra’s direct manager, Mr. Hudacin, allegedly berated him, retaliated against him, caused dysfunction within the team, and interfered with his ability to manage investment risk appropriately. The plaintiff claims he complained repeatedly, both to the Human Resources (HR) business partner and directly to Mr. Hudacin, including after his bonus was allegedly reduced arbitrarily as reprisal for his complaints. He also contacted Reg Swamy, then Chief Pension Officer and Head of Human Resources, to raise his concerns about harassment. Mr. Kachra pleads that while Mr. Swamy promised to address the issue, no meaningful steps were taken to improve the situation, and, in response to his complaints, he was instead told to look for new employment. Shortly thereafter, his employment was terminated.

Claims for wrongful dismissal and aggravated/punitive damages
In addition to wrongful dismissal damages, the plaintiff advances substantial bad-faith and punitive components. He seeks moral damages of $250,000 based on the manner of dismissal and the employer’s handling of his harassment complaints, and punitive damages of $500,000 on the theory that OPTrust failed to investigate and address his complaints of harassment and reprisal. Part of the moral damages claim rests on the allegation that several other employees had made similar complaints about Mr. Hudacin’s bullying, harassment, and discriminatory conduct, yet HR allegedly did nothing, despite knowing or being in a position where it ought to have known of these prior complaints. The plaintiff pleads that this failure left him working in what he characterizes as a toxic environment. None of these claimed damage figures are adjudicated or awarded in this procedural decision; they remain pleaded amounts in the main action.

Alleged pattern of complaints against the manager
In discovery and in support of this motion, the plaintiff identified seven other employees whom he believed had complained about Mr. Hudacin’s workplace behaviour, one of them being Mr. Swamy himself. The allegations include bullying, harassment, mistreatment, yelling and rudeness, taking staff to strip clubs, offering narcotics, and asking Asian staff to take an “accent reduction” course. The plaintiff deposed that these concerns were raised through various internal and external channels, such as diversity committees, HR, external investigators, and OPTrust executives. From his conversations with Mr. Swamy, he understood that Swamy not only knew of other complainants but had also initiated an investigation into Hudacin’s conduct. This asserted pattern of complaints, and the employer’s response (or lack of response) to them, is central to supporting the plaintiff’s case for moral and punitive damages.
 

Defendant’s discovery responses and redactions
On examination for discovery, OPTrust’s representative stated he was not aware of any complaints against Hudacin regarding his workplace behaviour. The defendant later refused to answer questions about whether there were complaints from anyone about Hudacin, and even a narrower question focused on the investment risk department. On a prior refusals motion, Associate Justice Rappos ordered the defendant to produce complaints about Hudacin’s behaviour from January 2018 to January 2020 and to contact Mr. Swamy for any notes related to discussions with the plaintiff in summer 2019. In response, OPTrust produced only one heavily redacted complaint and asserted there were no others, and stated that Swamy had no notes of his discussions with the plaintiff. In this motion, however, the plaintiff tendered an email from Swamy indicating that he had spoken with OPTrust’s counsel more than a year earlier, had provided detailed information, and had made handwritten notes of that information. None of those details or notes had been produced to the plaintiff. The court viewed these circumstances, together with OPTrust’s continued narrow view of relevance and its insistence that other complaints were immaterial, as amounting to an actual or constructive refusal to obtain and disclose the information internally or from non-parties.
 

The non-party witness and the NDA
The motion focused on Mr. Swamy, the former Chief Pension Officer and Head of Human Resources. Swamy is not a party to the action, but the plaintiff sought leave under Rule 31.10 of the Ontario Rules of Civil Procedure to examine him as a non-party. Swamy made clear that he was willing to speak with the plaintiff and his counsel, and to be examined under oath, but he was constrained by a non-disclosure agreement (NDA) with OPTrust. The defendant refused to waive that NDA. The court accepted that Swamy possessed information directly relevant to a material issue: what OPTrust and its HR leadership knew about other employees’ complaints regarding Hudacin, and what, if anything, the organization did in response to those complaints. Because the plaintiff alleged that Swamy himself had complained and had initiated an investigation, Swamy’s evidence was potentially central to establishing a pattern of misconduct and institutional inaction.
 

The Rule 31.10 test for non-party discovery
The court applied Rule 31.10, which permits leave to examine a non-party who is believed to have information relevant to a material issue in the action, provided three conditions are met: the information cannot be obtained from persons the moving party is otherwise entitled to examine or from the non-party informally; it would be unfair to require the moving party to proceed to trial without the opportunity to examine the non-party; and such an examination will not unduly delay the trial, entail unreasonable expense, or cause unfairness to the non-party. In assessing the first branch, the court found that OPTrust either did not have, or had not produced, the information regarding other complaints and Swamy’s knowledge, despite previously speaking with him. The defendant had not shown that it searched its records for the seven named complainants, nor had it given any undertaking to ask Swamy the relevant questions and share his answers. Coupled with its continued position that other complaints were not relevant, the court concluded there was no real likelihood that the defendant would voluntarily obtain and provide the information. The NDA, which OPTrust refused to waive, meant that the plaintiff could not obtain the information directly from Swamy outside a court-authorized examination.
 

Fairness, relevance, and non-party discovery
Turning to fairness, the court held that Swamy’s evidence was central to the plaintiff’s claims for moral and punitive damages because it went directly to the employer’s knowledge of other similar complaints and its institutional response. The plaintiff had only general information and did not possess the specifics needed to prove that other employees had complained about Hudacin’s harassment and that OPTrust failed to act. The court emphasized that Swamy was not a reluctant witness; he was more than willing to be examined. Citing prior authority on Rule 31.10, the court noted that the rule is aimed at preventing unnecessary burden on non-parties, not at arbitrarily denying access to witnesses with relevant evidence. Discovery of non-parties should be assessed in light of the broader objectives of discovery: allowing parties to understand and narrow the issues, prepare effectively for trial, and sometimes avoid a trial altogether. In that context, the court rejected OPTrust’s suggestion that the plaintiff should first conduct further discovery of the defendant, wait for potential refusals, and then bring yet another refusals motion. Given the defendant’s entrenched stance on relevance and its refusal to waive the NDA, the court considered it unlikely that this would yield the needed evidence.
 

Case management, timing, and costs considerations
On the third limb of the Rule 31.10 test, the court found that allowing the non-party examination would not unduly delay the action or cause unreasonable expense. No trial date had been set, and Swamy was ready and willing to be examined. The court considered that granting leave would likely move the case forward more efficiently by avoiding another refusals motion and clarifying the evidentiary record on the central harassment-complaints issue. There was no evidence that examining Swamy would result in unfairness to him; to the contrary, the NDA was the only barrier to testimony he was willing to give.
 

Outcome of the motion and costs award
Associate Justice Jolley concluded that the plaintiff had met the test under Rule 31.10 and that, in keeping with Rule 1.04’s focus on the just, most expeditious, and least expensive determination of proceedings on their merits, it was appropriate to exercise discretion in favour of permitting the non-party examination. The court therefore granted leave for the plaintiff to examine Mr. Swamy as a non-party on the limited but central issue of complaints by other employees, including Swamy himself, regarding Hudacin’s conduct. With respect to costs, the parties agreed in advance that the unsuccessful party on the motion would pay the successful party $20,000. The court accepted that agreement and ordered OPSEU Pension Trust, as the unsuccessful party, to pay an all-inclusive sum of $20,000 to the plaintiff within 30 days. In this decision, no damages on the underlying wrongful dismissal, moral damages, or punitive damages claims were determined, and the only monetary amount actually ordered in favour of the successful party, the plaintiff, was this $20,000 costs award.