Michael Ford (post until Oct. 31/19)
Employment & Labour

Court orders wide financial disclosure in dismissal case

By Barry B. Fisher

In this case, the master had a situation where the dispute centred around the basis for how the employer could alter the plaintiff’s commission plan.

The plaintiff said that it was based only on his sales. The defendant said that it had an unfettered discretion to change the plan at any time and had done so in the past on four occasions based upon the company’s profitability and the diversification of the sales portfolio.

The defendant produced the relevant financial statements but little more. On discovery, the president was asked for more detailed financial information and refused.

At the motion to compel undertakings and produce the documents requested, the defendant did not deny the relevance of the documents being requested but said the request was not proportionate and a fishing expedition.

Well, the plaintiff gets to go fishing. The master found that as there was a real dispute as to why and how the employer had changed the plaintiff’s commission in the past, that he was entitled to receive broad disclosure.

The lesson here is if you allege a valid business reason for exercising a discretion, be prepared to back it up with extensive disclosure. For plaintiffs, requesting extensive financial disclosure on relevant items may be a useful tactic to encourage the defendant to settle as they do not want to go through this extensive and expensive exercise and may dread that this information may go public one day.

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