The moving respondents sought dismissal of an application concerning management and control of two respondents' affairs and assets based on the applicant's non-compliance with a prior timetable order and, alternatively, for delay.
The court held that although the applicant had clearly breached the order by serving further evidence late and paying prior costs late, dismissal was a remedy of last resort and was not warranted on this record.
Instead, the late-served new evidence was struck as inadmissible and ordered purged from the record, along with any references to it in the factum.
The alternative delay motion also failed because the respondents did not establish inordinate, inexcusable, and prejudicial delay creating a substantial risk of an unfair hearing.
Partial indemnity costs of $6,000 were awarded to the moving respondents.
