Ontario Civil

Civil Procedure

Individual defendant might have access to material, but it was property of corporate defendant

Individual defendant entered into employment contract with plaintiff in 2004, and entered into further agreement in 2009. Individual defendant resigned in 2012, and began working for corporate defendant. Plaintiff claimed defendants were in breach of contractual obligations to plaintiff. Plaintiff asserted individual defendant used confidential information to plaintiff’s prejudice and solicited business from plaintiff’s clients in violation of contract. Individual defendant refused to produce client profile reports contained in system used by corporate defendant. Individual defendant as employee of corporate defendant had access to system. Plaintiff brought motion to require individual defendant to re-attend at examination for discovery and answer questions refused at original examination for discovery. Motion dismissed. Individual defendant had right to refuse to produce client profile reports contained in system. Individual defendant might have had access to material in system, but it was property of corporate defendant. If material was otherwise relevant, it could be produced through principal of corporate defendant. Notwithstanding that party might be in possession of document or have access to document, if that document belonged to another party, production would not be compelled.

Donaldson Travel Inc. v. Murphy (Jan. 14, 2014, Ont. S.C.J., R.D. Reilly J., File No. C-285-12) 236 A.C.W.S. (3d) 872.

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