Can you use the summary judgment process to avoid e-discovery?ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910 (CanLII)
In ThyssenKrupp v Amos and Skyline,2014 ONSC 3910 (June 26, 2014) salesman Scott Amos left Skyline to work for a competitor, ThyssenKrupp. Skyline sued for breach of fiduciary duty and breach of the non-compete and non-solicitation clauses in Amos’s employment contract. Amos denied any wrongdoing. A ThyssenKrupp representative swore an affidavit alleging wrongdoing by Mr. Amos, but on cross-examination admitted he had no evidence on which to base his allegations. Since Mr. Amos moved employers, three customers left ThyssenKrupp, but there was no documentary evidence tying any contractual breach to those moves.
Defendants then brought a motion for summary judgment, arguing it had no case to answer. The plaintiffs argued a breach by Amos could be inferred from their loss of clientele, and that they needed the pre-trial discovery process to obtain the evidence required to prove their case.
The court stated “it is not hard to imagine the existence of some documents that could help the plaintiff’s case.”  Nevertheless the court declined to order any documentary production, because (a) the plaintiff had not produced an affidavit of documents; (b) the plaintiff had not requested any documents during its cross-examination of ThyssenKrupp, and (c) the expense of e-discovery would not be justified for the sole purpose of confirming the lack or presence of a smoking gun. [paras. 41-42].
That decision was based neither on s. 29.1 of the Rules nor on the Sedona [Canada] Principles, but on the “desirability of utilizing Hryniak to make litigation timely, affordable and more just.” [para. 43]
The court was careful to say that a summary judgment motion alone cannot be used to avoid a party’s production obligations. In this case the plaintiff could have asked for documents on cross-examination; could have sought undertakings, and could have served summonses to witnesses. They could also have brought a motion for directions, or asked for documents while at Scheduling Court. Instead, they chose to ask the court to dismiss the summary judgment motion so the matter could proceed to full-blown discovery. [para. 44] Proceeding to discovery in these circumstances would have amounted to a fishing expedition. [para. 45]
In the end the motion for summary judgment was allowed, and the action dismissed.