Employee can’t go on a ‘fishing expedition’ for company documents

Worker sought documents in one court three days after the idential request was denied in another

Thompson v. Consolidated Fastfrate Inc., 2005 CarswellSask 329, 2005 SKQB 226 (Sask. Q.B.)

The Saskatchewan Court of Queen’s Bench has charged double costs against a plaintiff who sought documents in one court three days after the identical request was denied in another.

David Thompson filed a claim for wrongful constructive dismissal against Consolidated Fastfrate Inc. He applied to the court for an order that the company produce documents including:

•financial statements, for the four years ending September 2004 and of the year to date, for the company’s midwest region;

•a list of the company’s fleet of trucks, with the model and year indicated;

•minutes and agendas of all the defendant’s executive, manager, director and officer meetings from 2002 to the present;

•a list of company employees who were promoted or demoted in February 2004, including their before and after salaries, duties and job descriptions;

•the agreements around the purchase and sale of the company’s terminals in Saskatoon;

•proof of the salaries of everyone who replaced Thompson in the company;

•records and information about one current and one former Consolidated Fastfrate employee; and

•records which may establish the company’s contention that it re-assigns managers to positions of lower responsibility depending on circumstances.

Thompson sought these documents, he stated, because there must be more documents relevant to his claim than what the company said existed and he did not want to be taken by surprise at trial. The court rejected his request. A plaintiff cannot be taken by surprise at trial by the production of undisclosed documents, it said. The company had not offered a defense to Thompson’s action that would require some of the documents, and others either did not exist or were not relevant to his claim, said the court. In addition, Queen’s Bench rules do not require a party to prepare “lists.”

Thompson did not appeal the decision of the court. On Feb. 14, 2005, three days after the court rejected the request for documents, Thompson sought a subpoena against Darwin Bach, an employee of Consolidated Fastfrate. It required Bach to appear as a witness, and sought the production of the same documents he’d earlier requested.

The court again rejected the petition. A subpoena is not to be used as a “fishing expedition” — there was nothing in Thompson’s subpoena application which referred to evidence Bach would likely give at trial, said the court. There has to be a real basis for believing it is likely a witness can give material evidence. A litigant is not entitled to conduct an examination in the hope that something might turn up that assists his case. In addition, a party who has chosen not to appeal a judgment cannot make a collateral attack on the judgment at a later stage in the proceeding.

The subpoena was obtained for the sole purpose of circumventing the previous ruling, said the court. It said it was an improper abuse of the process of the court. The subpoena request was quashed and Consolidated Fastfrate was awarded double costs of the motion.

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