Former director of investment claims his manager ‘berated him, retaliated against him, caused dysfunction in the team’ in wrongful dismissal case
A recent development out of Ontario is a reminder to HR practitioners that non‑disclosure agreements (NDA) are not unbreakable.
Ontario’s Superior Court of Justice ordered that a former chief pension officer and head of HR at OPSEU Pension Trust be examined for discovery in a harassment‑linked wrongful dismissal lawsuit — despite his signing an NDA.
In Kachra v. OPSEU Pension Trust, 2026 ONSC 2092, associate justice Karen Jolley granted plaintiff Aly Kachra leave under Rule 31.10 to examine non‑party witness Reg Swamy. The court found there was reason to believe Swamy has information “relevant to a material issue in the action.”
Kachra was director of investment risk from April 2017 until his dismissal on Jan. 9, 2020. He alleges that his direct manager, Mr. Hudacin, “berated him, retaliated against him, caused dysfunction in the team, and interfered with his ability to properly manage risk,” and that he was dismissed “for complaining about this harassing behaviour.”
Kachra says he complained several times to the organisation’s human resources business partner, raised concerns directly with Hudacin, and later contacted Swamy, then chief pension officer and head of HR, about the alleged harassment. He alleges “Swamy promised to raise the issue, but no apparent steps were taken to improve the situation.”
Kachra seeks damages for wrongful dismissal, $250,000 in moral damages for the alleged bad‑faith manner of dismissal, and $500,000 in punitive damages related to what he says was the defendant’s failure to investigate and address complaints of harassment and reprisal.
Here’s how to use NDAs without getting burned.
Pattern of complaints and HR’s knowledge
A key part of Kachra’s claim is that other employees also complained about Hudacin and that HR knew or ought to have known of those concerns.
It further alleges that HR "deliberately chose not to do anything about it," forcing Kachra "to continue to work in a toxic work environment.”
On discovery and in motion materials, Kachra provided the names of seven other employees he believed had complained about Hudacin’s conduct, including Swamy himself. In an affidavit, Kachra said the behaviour complained about by others included “bullying, harassment, mistreatment of others, yelling and rudeness… taking staff to strip clubs, offering them narcotics and asking Asian staff to take an accent-reduction course.”
Given Kachra’s complaints to Swamy, the allegation that Swamy made his own complaint and “commenced an investigation” into Hudacin’s conduct, and his alleged knowledge of others who raised similar concerns, “it is clear that Mr. Swamy has information relevant to a material issue in the action," said associate justice Jolley.
In January, the Vancouver Symphony Orchestra (VSO) said it will largely abandon the use of NDAs in matters involving sexual misconduct, following public criticism over its handling of a former musician’s allegations.
NDA, non‑party discovery and costs
Swamy indicated he is prepared to speak to Kachra and his lawyer and to be examined, but said he is constrained by an NDA with OPSEU Pension Trust, which the employer refuses to waive. He told Kachra’s counsel that he had spoken with the defendant’s lawyers by telephone more than a year ago and that “I also made handwritten notes of the relevant information I provided on that date.”
On discovery, OPSEU’s representative said he was not aware of any complaints about Hudacin’s workplace behaviour. The employer refused further questions about whether other complaints existed, including a narrower question about complaints from the investment risk department. After an earlier order by associate justice Sam Rappos to produce any complaints between January 2018 and January 2020, OPSEU delivered one “heavily redacted complaint” and advised there were no others.
Associate justice Jolley found there was “an actual or constructive refusal by the defendant to obtain – and deliver to the plaintiff – the information either internally or from non-parties,” and that the employer had taken “a very narrow view of relevance and materiality.” She held that “Swamy has information relevant to the plaintiff’s claim and, on the evidence before me, is the only party with that information,” and that proposed questioning on complaints made by other employees, including Swamy, is “central to the plaintiff’s claim for moral damages and punitive damages.”
Associate justice Jolley concluded that permitting the examination “will assist in achieving the just, most expeditious and least expensive determination of the proceeding on its merits.”
On costs, she recorded that the parties agreed the unsuccessful party would pay $20,000, and ordered OPSEU Pension Trust to pay Kachra that all‑inclusive sum within 30 days.
In 2023, the Canadian Bar Association vowed to advocate and lobby for legislation and policies to put an end to NDAs at the federal, provincial and territorial levels.
