DATE: 20050505

DOCKET: 41966

COURT OF APPEAL FOR ONTARIO

RE:

LESLIE McLAUGHLIN (Plaintiff (Respondent)) – and – PERSONAL INSURANCE COMPANY OF CANADA and NEVA PERROTTE (Defendants (Appellants))

BEFORE:

CRONK, GILLESE and MacFARLAND JJ.A.

COUNSEL:

James Flaherty and Michael Chadwick

for the appellants

Valerie D. Wise

for the respondent

HEARD & RELEASED ORALLY:

May 3, 2005

On appeal from the order of Justice H. J. Keenan of the Superior Court of Justice dated June 14, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, it was an error in principle for the motions judge to strike the defendants’/appellants’ statement of defence without having reviewed and considered all the affidavit evidence before him. On the record that was before the motions judge, we conclude that this is not a case for the “ultimate litigation remedy” because the appellants made efforts to comply with the production orders made by the court, there was delay occasioned by both sides in advancing the litigation, and the evidence of prejudice to the respondent arising from the appellants’ failure to fully comply with the April 3, 2003 production order of Jenkins J. is limited and untested.

[2] That said, we do not wish to be understood as condoning the prolonged delay in this case, a considerable part of which appears to us to have been caused by the defendants’/appellants’ conduct.

[3] The appeal is allowed, the order of Keenan J. dated June 14, 2004 is set aside (save with respect to his costs disposition) and the defendants/appellants are directed to make production of all outstanding documents in accordance with the orders of Jenkins J., including of production number 114 (the log book), within seven days from the date hereof.

[4] In our view, this is not an appropriate case for an award of costs of the appeal. Nor are we persuaded that we should interfere with the costs order of Keenan J. dated June 14, 2004 on the motion below.