COURT OF APPEAL FOR ONTARIO

CITATION: Roffey v. Hunter Corporation, 2015 ONCA 824

DATE: 20151130

DOCKET: C60452

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Lucas Roffey, TD Waterhouse Canada Trust Inc. in trust for RRSP # 46HM13S, TD Waterhouse Canada Trust Inc. in trust for RRSP # 5557000S, Alan Roffey

Plaintiffs (Respondents)

and

Hunter Corporation, Hunter Promenade Corporation, 1355394 Ontario Inc., Richard K. Watson

Defendants (Appellants)

Michael Simaan, for the appellants, 1355394 Ontario Inc. and Richard K. Watson

D. Gordon Bent, for the respondents

Heard: November 24, 2015

On appeal from the order of Justice Bruce A. Glass of the Superior Court of Justice, dated April 21, 2015.

ENDORSEMENT

[1] The motion judge granted the respondents’ motion and struck the appellants defence. He provided only the following reason: “Def. Watson has not filed material as directed by order of O’Connell J. on Feb 19/15”.

[2] The appellants make three submissions on appeal. First, they argue that the motion judge ought to have provided them with a chance to cure the default. Second, they contend that the motion judge failed to consider the proportionality of the remedy and the merits of the defence. And third, that because the response to undertakings was only 35 days late, it was unreasonable to strike the defence.

[3] We reject each of the appellants’ submissions.

[4] The first observation we make is that the appellants did not file responding materials on the motion to explain or excuse their failure to produce the answers and documents ordered to be delivered. Thus, there was no evidence before the motion judge to provide any explanation for the failure to satisfy the undertakings and no evidence that they had any defence to the action.

[5] Indeed, on appeal, the appellants still do not explain what their argument would have been to the striking of the defence or why they were unable to comply with the order that led to the order to strike their defence. Moreover, they do not explain why they were and have been unable to satisfy their undertakings. In addition, they do not claim to have satisfied any more of their long overdue undertakings, nor that they will do so promptly if the appeal is allowed.

[6] The appellants had an opportunity to cure this default. They were served with a notice of motion for contempt and failed to appear on the return date. The motion was adjourned and they had time in the interim to comply with the order or to explain their default. They did neither.

[7] The motion judge could not have considered the merits of the appellants’ defence because they put no evidence before him. As to proportionality and the duration of the delay, the motion judge was in a position to consider the relief sought in the context of the entire litigation. That context included lengthy delays and conduct of the appellants that could be regarded as both dilatory and deliberately obstructionist. It also included the fact that the order at issue was made on consent and the appellant Watson was a solicitor.

[8] The brevity of the motion judge’s reasons does not cause us any concern. A failure to specifically refer to the factors to be considered in striking a pleading may be excused if the record supports the decision: Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487. Here, the order to strike the defence was an obvious result, given all the circumstances. The appellants’ answers to undertakings were long overdue and breached multiple court orders.

[9] The motion judge’s order to strike the defence was discretionary. Absent clear error, it is entitled to significant deference from this court: Diami Inc. v. Papadakos, 2012 ONCA 879. The appellants have failed to convince us that any such error was committed. The appeal is dismissed.

[10] The respondents are awarded costs of the appeal in the amount of $9,600 inclusive of disbursements and HST.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

"Grant Huscroft J.A."