Court of Appeal for Ontario
Before: Feldman, MacFarland and Karakatsanis JJ.A.
Between:
Harjinder Singh Tiwana
Applicant (Appellant)
and
Bimaljit Kaur Sandhu
Respondent (Respondent in Appeal)
Counsel:
Geoffrey Wells, for the appellant
Valois P. Ambrosino and Belinda Rossi, for the respondent
Heard: June 28, 2010
On appeal from the order of Justice Victor Paisley of the Superior Court of Justice dated September 1, 2009.
ENDORSEMENT
1As this court stated in Purcaru v. Purcaru, 2010 ONCA 92 the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that is entitled to deference on appeal when exercised on proper principles.
2Here on three different occasions, before three different judges, the appellant was ordered to provide financial disclosure and failed to do as ordered. The disclosure related in large part to numerous banks accounts that the appellant had established in the names of the children of the parties.
3When he appeared before the motion judge on July 6, 2009, he was given one last chance to comply. And although he filed a lengthy and complex affidavit by August 18, 2009 the deadline set by the motion judge, the disclosure remained incomplete and remains so to this day.
4The respondent has expended substantial funds in her efforts to have the appellant do what the rules and orders have required him to do.
5The motion under appeal was heard ex parte. We do not endorse the practice whereby an order is made that strikes a party’s pleading on an ex parte basis where the party purports to comply with the disclosure order. Such order should, in those circumstances, be on notice to the affected party in order that he or she may be given the opportunity, if able, to explain or assert compliance with a disclosure order.
6Although the motion here proceeded on an ex parte basis, we note that the presiding judge was the same judge who heard the very lengthy motion on July 6, 2009, was well-familiar with the disclosure issues of the case and had before him the appellant’s disclosure documents filed August 18, 2009 following the July 6, order. Further, the appellant concedes that the respondent’s factum, filed on the ex parte hearing and upon which the motion judge relied, was not in any way misleading. That factum detailed the shortcomings in the appellant’s August 18th disclosure.
7In our view the motion judge committed no error in striking the appellant’s pleadings and permitting the respondent to proceed with an uncontested trial.
8The appellant also appeals the costs order made by the motion judge October 2, 2009 in the sum of $63,032.92. While the quantum is high, it is noted that the respondent’s own solicitor/client account was in excess of $100,000. We note that this order deals with the costs of all proceedings including the five steps that led up to the order of July 6, 2009, when costs were reserved. The materials were voluminous, were not organized in any fashion and were simply “dumped” on counsel for the respondent to organize and figure out if she could.
9The award is reasonable in all the circumstances of this case.
10The appeal is dismissed. Costs of the appeal to the respondent fixed in the sum of $15,000 inclusive of GST and disbursements.
“K. Feldman J.A.”
“J. MacFarland J.A.”
“Karakatsanis J.A.”