The dispute at issue concerned an employee’s termination without cause which was set to be heard as a Summary Trial in accordance with the Rules. The Plaintiff requested the disclosure of particular records, but that request was refused by the Defendant (the “Disputed Disclosure”). The Plaintiff posited that an adverse inference should be drawn for failure to produce the Disputed Disclosure. The Court distinguished case law advanced by the Plaintiff with respect to the Disputed Disclosure where adverse inferences had been found, and additionally found that it would be improper to draw an adverse inference for the Disputed Disclosure at Summary Trial, because the Summary Trial Application did not set out such relief and only relief sought in an Application may be granted.

The Court noted that the correct procedure for obtaining undisclosed records that are relevant and material requires an Application under Rule 5.11, but determined that the Plaintiff had not provided a reason for not availing herself of a remedy in accordance with the Rule.

The Court additionally noted that the burden of proof to be met at Summary Trial under Rule 7.5 was on a balance of probabilities.