Can the Alleged Harasser Examine for Discovery the Alleged Victim?

In Mohotoo v Humber River Hospital ( 2021 )NSC 4894) Mater La Horey had a situation where the Plaintiff, a manager, was fired for just cause for sexually harassing a unionized employee. The Plaintiff indicated that they wished to examine the alleged victim as the Defendant’s representative. The Defendant objected and proposed that they present a human resource manager, who had no first hand knowledge of the alleged harassment.

The Court found that the Plaintiff had the primary right to choose which representative of the Defendant that he wished as long as the the purpose behind choosing that particular person is not ” perverse, illogical, vindictive or made for a collateral purpose, such as intimidation.”

As there was no evidence that this was the purpose behind choosing the alleged victim as the Defendant’s representative, the Master ordered that chosen individual to attend for examination.

In this case it was noted that the only real issue was whether or not the sexual harassment took place, and thus the alleged victim would certainly have sufficient knowledge of the relevant facts.

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