COURT OF APPEAL FOR ONTARIO
Armstrong, Juriansz and Watt JJ.A.
BETWEEN
Heather-Anne Stuyt
Applicant (Respondent)
and
Kenneth Stuyt
Respondent (Appellant)
Donald R. Good, for the appellant
Robert Montague and Amanda Hall, for the respondent
Heard and released orally: January 29, 2010
On appeal from the order of Justice James McNamara of the Superior Court of Justice dated October 23, 2008 and from the judgment of Justice J. Parfett of the Superior Court of Justice dated December 19, 2008.
ENDORSEMENT
1This is an appeal from the order of Justice McNamara of the Superior Court of Justice striking the appellant’s pleadings in this family law dispute. There is also an appeal from the judgment, which followed after a trial in the absence of the appellant. A short history of the proceedings is appropriate.
2The respondent wife moved before the motions judge to strike the appellant’s pleadings on September 8, 2008. The basis of the motion was the appellant husband’s alleged failure to answer 32 undertakings given on his examination for discovery, held some three months earlier on June 11, 2008.
3On September 22, 2008, counsel for the appellant wrote to counsel for the respondent as follows:
We have been working on the undertakings. I believe we can have all undertakings completed by October 17, 2008. I am prepared to consent to the following order:
(a) All undertakings complete by October 17, 2008;
(b) Failure to comply with (a) allows you to strike the pleadings;
(c) $500 to cover your costs.
Please advise.
4This proposal was not accepted and the motion proceeded on September 29, 2008. On that date, the motion judge made the following order:
(1) Production of outstanding undertakings to be provided as they become available but are to be completed no later than Thursday, October 9 failing which it is ordered that the respondent’s pleadings are to be struck;
5Between October 1, 2008 and October 9, 2008, counsel for the appellant wrote seven letters to counsel for the respondent in which he purported to answer all 32 undertakings, which included the production of a number of documents. The last letter on October 9, 2008, read:
I am forwarding a fax of our final reply to the balance of the undertakings and I will forward two copies to your office first thing in the morning. I am following up on your request for additional working documents from Collins Barrow. Please advise if you require any additional documents and/or information.
6Counsel for the respondent was of the view that the appellant had failed to answer the undertakings and on October 10, 2008, wrote to counsel for the appellant as follows:
Please find attached a Draft Order striking the Respondent’s pleadings as well as Consent Form. Please sign the Consent form and approve the draft Order as to form and content.
7On the same date, counsel for the appellant replied to the above letter as follows:
I believe we have fully complied with the spirit of the Order to comply with undertakings. Each undertaking has a response. If there are additional documents required as per your first letter of the same date we will continue to search for and provide them. I believe you do have sufficient material for your expert to work from. I am not in a position to consent to your order and I believe the Motion judge indicated you do not need my consent.
8On October 14, 2008, counsel for the respondent wrote to the motions judge. The letter read in part:
A copy of Your Honour’s endorsement from the September 29, 2008 motion is attached. Mr. Stuyt failed to provide answers to all undertakings on or before the September [sic] 9, 2008 deadline. I have attached a copy of my letter to Mr. Good, dated October 10, 2008, setting out the unanswered undertakings.
We now wish to take out an Order striking the Respondent’s pleadings/Answer, which will prevent the Respondent from having notice of any further steps in this court action. Please note that during the September 29, 2008 motion, you advised we did not need the Respondent’s consent to take out the Order in the event he failed to comply with the answers to undertakings. We therefore attach for your signature three (3) Final Orders.
9No reference was made in the above letter to the letters of counsel for the appellant purporting to answer the undertakings. The respondent’s counsel’s letter indicated that 7 of the 32 undertakings were not answered. Details of the alleged deficiencies were provided. However, the judge was not advised that the position of the appellant was that all undertakings were fully answered. No affidavit or other sworn evidence was provided to the motions judge.
10The order striking the pleadings followed.
11The trial of this matter proceeded before Parfett J. on December 8, 2009 in the absence of the appellant. Substantial relief was granted to the respondent including $1,511 per month in child support, extraordinary expenses of $189.30 per month, $8,900 in arrears of child support, an equalization payment of $387,486.99 and pre-judgment interest of $58,341.20. The trial judge also granted a divorce decree.
12The final judgment is also under appeal, however, both parties agree that if we allow the appeal in respect of the order striking the pleadings, then the trial judgment should be set aside.
13We return to the order of October 23, 2008 striking the pleading. We begin by noting that counsel for the respondent has withdrawn his position that the order is interlocutory. He concedes that it is a final order.
14In our view, the order cannot stand for two reasons. First, the request for the order striking the pleadings was made without any sworn evidence by way of affidavit before the motions judge. All the motions judge had was the letter of October 14, 2009 from counsel for the respondent with the attached letter to counsel for the appellant. Further, the motions judge was not advised of the correspondence from counsel for the appellant purporting to answer the undertakings. Had the motion judge been provided with the appropriate information in proper evidentiary form, it is most unlikely that he would have struck the pleadings.
15The second reason for setting aside the order relates to the well-settled juris-prudence of this and other courts that an order striking pleadings is an order of last resort. In our view, given the circumstances that the discoveries had been held barely three months earlier and the appellant counsel’s considerable efforts to answer the under-takings, this is clearly not a case for such an order.
16While undoubtedly the appellant’s counsel could have shown more initiative in protecting his client’s position, the obligation was on counsel for the respondent, when seeking an ex parte order, to make full, fair and frank disclosure of the relevant facts for the motions judge.
17In the result, the order striking the pleadings of the appellant is set aside. As indicated above, the trial judgment is also set aside with the exception of the decree granting the divorce, which proceeded on an undefended basis throughout.
18The appellant shall have its costs of both appeals on a partial indemnity basis fixed at $12,000 inclusive of disbursements and GST.
“Robert P. Armstrong J.A.”
“R.G. Juriansz J.A.”
“David Watt J.A.”