Court of Appeal for Ontario

CITATION: Glasco v. Bilz, 2015 ONCA 83

DATE: 20150204

DOCKET: C59331

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Kimberly Glasco

Applicant

(Respondent on Appeal)

and

Christopher Bilz

Respondent

(Appellant)

Dani Z. Frodis and Daniel Bernstein, for the appellant

Steven M. Bookman, Chris Stankiewicz and Maia Rabinovitch, for the respondent

Heard and released orally: January 15, 2015

On appeal from the order of Justice Ruth E. Mesbur of the Superior Court of Justice, dated September 2, 2014.

ENDORSEMENT

[1] We consider the decision of Mesbur J. to be a final order. In our view, the subsequent decision of Kruzick J. declining to consider on the merits a motion to reinstate the pleadings has no impact on our jurisdiction to hear this appeal from the order of Justice Mesbur.

[2] The decision of Mesbur J. to strike the appellant’s pleadings on certain issues for non-compliance with various disclosure orders was an exercise in her discretion which is entitled to deference in this court absent error in principle or material misapprehension of the evidence.

[3] The motion judge correctly identified the operative principles in the last sentence of paragraph 24 of her reasons.

The issues is whether the respondent remains in default, whether his default is wilful, and if so, whether striking his pleadings is the only appropriate remedy available.

[4] We will address each of those three criteria.

[5] On the material, there can be no doubt that required disclosure remained outstanding at the time of the motion before Mesbur J. The respondent’s affidavit identified in detail many deficiencies in the appellant’s productions. The appellant’s affidavit addressed many of those alleged deficiencies but also left many entirely unaddressed. There was ample ground upon which the motion judge could find that the respondent was in default of the production orders at the time of the motion.

[6] There was also ample evidence from which the motion judge could find that the default was wilful. That evidence included the evidence that the default continued over almost two years and had been the subject of various court orders. As the motion judge indicated, the appellant had many opportunities to comply with the disclosure order and failed to do so.

[7] The responses fashioned by the appellant on the motion to strike are also relevant to the question of wilfulness. The appellant chose on the motion judge’s finding to obfuscate the nature and extent of his response to the disclosure obligation leaving the motion judge unable to satisfy herself as to the extent to which the appellant had complied with the order. The motion judge observed at paragraph 30:

I am not going to do the respondent’s work for him. The applicant, as required, has set out specifically the disclosure still missing from what the respondent was ordered to produce. If the respondent cannot show that he has produced the information, or provides a credible and compelling reason why he cannot do so, (as he was ordered to do) his pleadings must be struck. I am not persuaded the respondent has met his burden. He could have done so, simply by responding specifically regarding the missing information. He has not. I infer he deliberately chose how to respond to this motion. His response speaks volumes – both literally and figuratively.

[8] It was open to the motion judge to view the appellant’s response as part of a strategy designed to avoid compliance with the outstanding disclosure orders. In our view, that strategy is indicative of a wilful disobedience.

[9] Finally, with respect to the remedy imposed, we acknowledge that striking pleadings is a drastic remedy. However, in this case the motion judge mitigated that remedy by including the provision that the appellant could move to reinstate his pleadings on “proper evidence”. The motion judge made it clear in her reasons what would be needed by way of “proper evidence” to facilitate the reinstatement of the pleadings. The appellant chose not to pursue that avenue in a timely fashion.

[10] The appeal is dismissed. Costs are awarded to the respondent in the amount of $10,000 inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“Huscroft J.A.”