The defendant brought a motion to set aside an order striking out its statement of defence and dismissing its counterclaim, which was obtained without notice after the defendant failed to comply with an earlier order requiring it to satisfy undertakings.
The court reviewed conflicting case law on whether an order obtained without notice pursuant to an earlier order made on notice falls under Rule 37.14(1)(a).
The court concluded it had jurisdiction to hear the motion but declined to set aside the order, finding the defendant's complete and ongoing failure to comply with its undertakings and court orders justified the dismissal.
The motion and a supplemental motion to set aside the noting in default were dismissed.
