Court of Appeal for Ontario

Citation: Diami Inc. v. Papadakos, 2012 ONCA 879

Date: 20121213

Docket: C55631

Before: Simmons and Hoy JJ.A. and Speyer J. (ad hoc)

Between

Diami Inc. and Chong Ching Lim

Plaintiffs/Respondents

Defendants by counterclaim

and

George Papadakos, Gus Papadakos, Mirko Kijurina, Zvijezdana Kijurina, Move Canada Moving Systems Inc. and International Quilting Inc.

Defendants/Appellant

Plaintiff by counterclaim, George Papadakos

Counsel:

Dennis Van Sickle, for George Papadakos

Christopher P. Goldson, for the respondents

Heard and released orally: December 3, 2012

On appeal from the order of Justice Kevin W. Whitaker of the Superior Court of Justice, dated May 22, 2012.

ENDORSEMENT

[1] On May 22, 2012, the motion judge struck the appellant’s statement of defence and counterclaim because he found the appellant had “persistently” failed to make his best efforts to satisfy undertakings given on an examination for discovery held in September 2009, and because the appellant’s answers were “persistently” incomplete. The appellant contends that the motion judge erred in his findings and that he applied the wrong legal test for striking pleadings.

[2] We do not accept this submission. The order under appeal is discretionary and absent clear error is entitled to significant deference from this court.

[3] On the record before him, it was open to the motion judge to make the findings he made. The appellant filed no responding material on the motion. This was a case involving allegations of fraud, and despite four court ordered time tables, and multiple requests to satisfy undertakings, the appellant failed to fully answer his undertakings.

[4] Having regard to his findings, it was open to the motion judge to come to the decision he did.

[5] We note, as well, that the appeal of the costs order made by the motion judge has been abandoned but the costs have not been paid.

[6] In all the circumstances, the appeal is dismissed.

[7] Costs of the appeal are to the respondent on a partial indemnity scale, fixed in the amount of $8,486.00 inclusive of disbursements and applicable taxes.

“Janet Simmons J.A.”

“Alexandra Hoy J.A.”

“C.M. Speyer J. (ad hoc)”