The plaintiff brought a motion under Rule 60.12 of the Rules of Civil Procedure seeking to strike the defendants’ statement of defence for failure to comply with a consent order requiring production of extensive documents and answers to refusals arising from discovery.
Evidence showed the defendants produced only eight irrelevant invoices and had not conducted a search to comply with the order.
On cross‑examination the individual defendant admitted the searches referenced in his affidavit were conducted earlier and not for the purpose of complying with the consent order, and that potentially relevant documents may exist with the company’s accountant and bookkeeper.
The court found the defendants had effectively done nothing to comply and criticized the affidavit evidence as clearly erroneous under oath.
However, the court declined to immediately strike the defence and instead granted a final opportunity to comply within 30 days, coupled with substantial indemnity costs and a security for costs requirement.
