DLE Consulting Inc. v. Graham et al. Graham et al. v. DLE Consulting Inc. et al.

[Indexed as: DLE Consulting Inc. v. Graham]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Pepall and D.M. Brown JJ.A.

April 28, 2016

130 O.R. (3d) 799 | 2016 ONCA 315

Case Summary

Civil procedure — Simplified procedure — Jurisdiction — Motion judge striking defendant's statement of defence and counterclaim for failure to produce affidavit of documents — Defendants appealing on ground that motion judge lacked jurisdiction to make order as it was made under Rule 76 — Appeal dismissed — Order not made under Rule 76 — Making order under Rule 76 which should have been made under ordinary procedure not depriving motion judge of jurisdiction in any event — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 76.

The defendant appealed an order striking the statement of defence and counterclaim for failure to produce an affidavit of documents, submitting that the motion judge had no jurisdiction to make the order as it was made under Rule 76, even though the defendant had continued the litigation under the ordinary procedure.

Held, the appeal should be dismissed.

The order did not refer to Rule 76. Even if the order was made under Rule 76 and should have been made under the ordinary procedure, that was a technical irregularity which did not deprive the motion judge of jurisdiction to strike the defendant's pleadings.

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30, 76 [page800]

APPEAL from the order of Gorman J. of the Superior Court of Justice dated July 14, 2015 striking a statement of defence and counterclaim.

Alexander Nicholas Zivkov, for appellants.

Jordan D. Sobel, for respondent.

[1] Endorsement BY THE COURT: -- The motion judge struck the defendants' statement of defence and counterclaim for failure to produce an affidavit of documents. The appellants' main submission on appeal is that the motion judge had no jurisdiction to make the order under appeal because it was made under Rule 76 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], even though the appellants have continued the litigation under the ordinary procedure.

[2] We do not accept this submission. The motion judge's order does not refer to Rule 76. The respondents' notice of motion does refer to Rule 76 but also to Rule 30. Moreover, even if the order was made under Rule 76 and should have been made under the ordinary procedure, this is at best a technical irregularity, which did not deprive the motion judge of jurisdiction to strike the appellants' pleading.

[3] The appellants had twice been ordered to produce an affidavit of documents and failed to do so. Even today, the appellants still have not delivered an affidavit. The motion judge's order is discretionary. We are satisfied that she exercised her discretion reasonably, even though the result of her decision will deny the appellants a chance to defend the respondent's claim on the merits.

[4] The appeal is dismissed with costs to the respondent in the amount of $6,100, all inclusive.

Appeal dismissed.

End of Document