Court File and Parties
Citation: King v. Couperthwaite, 2008 ONCA 890
Date: 2008-12-29
Docket: C48562
Court of Appeal for Ontario
Before: Laskin, Gillese and Blair JJ.A.
Between:
Carol King Applicant (Respondent)
and
Brian Couperthwaite Respondent (Appellant)
Counsel: Gary S. Joseph, for the appellant Jason Ward, for the respondent
Heard and released orally: December 17, 2008
On appeal from the order of Justice Myrna L. Lack of the Superior Court of Justice dated February 28, 2008.
ENDORSEMENT
[1] This is an appeal from the motion judge’s order striking Mr. Couperthwaite’s pleading. We see two problems with the order.
[2] First, the motion judge does not appear to have appreciated that the appellant did comply to some extent with the outstanding orders. Although he acknowledges that he did not fully comply, this is not a case where he entirely ignored these orders. Second, we think that the record is unclear on what the appellant’s precise obligations are under the four orders.
[3] In the light of these considerations, we think that the appellant should be given a further opportunity to cure his default. To do so, we make the following orders:
the appeal is allowed and the order striking the appellant’s pleading is set aside;
the parties, through their counsel, shall meet, as soon as is practicable, with a view to reaching an agreement on the appellant’s outstanding obligations. Failing agreement, either party may return to the Superior Court for clarification;
once the appellant’s obligations have been clarified, he shall have 45 days or such further period as the parties may agree or the Superior Court permit, to comply with these obligations;
failing compliance, the respondent shall be at liberty to bring a further motion to strike the appellant’s pleading.
We do not think that this is a case for costs, and therefore, none are ordered.
[4] The motion for fresh evidence is dismissed.
“John Laskin J.A.”
“E.E. Gillese J.A.”
“R.A. Blair J.A.”