G. Eckler

The plaintiffs brought a motion to strike the defendants' statement of defence and for costs thrown away after the defendants failed to attend scheduled examinations for discovery.

The court found that the defendants' non-attendance was due to their former counsel's inadvertent misunderstanding of the schedule, rather than a deliberate flouting of a court order.

The motion to strike was dismissed, as the draconian remedy was not warranted and the defendants offered to cure the default.

However, the court awarded the plaintiffs $15,823.77 in costs thrown away for the wasted preparation time and disbursements related to the missed examinations.

The plaintiff brought a motion under Rule 34.10 for the disclosure of documents referenced in an affidavit sworn by a non-party, and to compel answers to questions refused during the non-party's cross-examination.

The requested documents were a subset of those sought in an underlying, pending Rule 30.10 motion for non-party production.

The court dismissed the motion, finding that ordering production at this stage would interfere with the orderly progress of the action, risk inconsistent findings with the pending Rule 30.10 motion, and disturb the fairness of the procedure for seeking non-party productions.