Court of Appeal for Ontario
Citation: Wilk v. Golec, 2010 ONCA 266 Date: 2010-04-12 Docket: C50352
Between:
Krystyna Helena Wilk Applicant (Respondent in Appeal)
Daniel Wilk, Janusz Wilk Applicant (Third Parties)
and
Marek Golec Respondent (Appellant)
Monica Golec (also known as Monica Golec), Madeline Golec, The Wilk-Golec Family Trust, Bozena Kleszcz, Waclaw Paul Golec Respondent (Third Parties)
Before: Gillese, Lang and Rouleau JJ.A.
Counsel: Geoffrey Wells and Gary Joseph, for the appellant Murray Lightmar, for the respondent
Heard: April 9, 2010
On appeal from the order of Justice Lorna-Lee Snowie of the Superior Court of Justice dated March 26, 2009.
Appeal Book Endorsement
[1] We would allow this appeal.
[2] In our view, the motion judge erred in a number of respects. She failed to carefully consider Mr. Golec’s efforts to provide the disclosure, which failures are largely due to third parties. Further and very importantly, the motion judge seems to have failed to consider the full procedural history of this matter, including the fact that this matter had been set for trial and indeed trial had commenced before a mistrial was declared. Some 18 months after a previous order was made which effectively ruled that disclosure was complete, a further order for disclosure was made. It is that further disclosure order which ultimately led to this appeal.
[3] Before imposing the sanction of striking pleadings, the motion judge had to weigh such factors as the size and significance of the matters to go to trial. In this case, the assets were in excess of a million dollars and Mr. Golec’s livelihood are at stake. Striking his pleadings, in light of the history of this matter and Mr. Golec’s efforts to provide disclosure, was not an appropriate exercise of discretion.
[4] Accordingly, the appeal is allowed, the order below, including the costs order, is set aside and the appellant’s pleadings are reinstated. We would remit this matter to the case management judge, Coats J., or such other case management judge as the R.S.J. should designate.
[5] Costs of the appeal to the appellant fixed at $15,000, inclusive of disbursements and GST. Costs of the motion below before Snowie J. are left to the trial judge.