Court of Appeal for Ontario

Date: 20231117 Docket: COA-23-CV-0377

Miller, Paciocco and Nordheimer JJ.A.

Between

Frank Brown Plaintiff (Respondent)

and

Jeremy Williams Defendant (Appellant)

Counsel: Jeremy Williams, acting in person Mark A. Klaiman, for the respondent

Heard: November 16, 2023

On appeal from the order of Justice Cynthia Petersen of the Superior Court of Justice, dated March 13, 2023.

Reasons for Decision

[1] Mr. Williams appeals from the order of the motion judge that struck his statement of defence. The order arose from the failure of the appellant to serve an affidavit of documents by a required date and from his failure to answer questions on his court ordered examination for discovery.

[2] Prior to the motion, the appellant had consented to an order that he deliver an affidavit of documents by a certain date and that he attend for his examination for discovery on a certain date. Both this order and the order under appeal were granted at a time when the appellant was unrepresented.

[3] The motion to strike was scheduled for Monday, March 13. On the Friday prior, in the afternoon, the appellant sent an email advising respondent’s counsel that he had retained counsel. He requested that the motion be adjourned as his new lawyer had a prior commitment on Monday. After that request, the appellant’s new counsel sent a further email to the respondent’s counsel in which she advised that she was in the process of being retained and that she expected that her retainer would be finalized “very soon”. She repeated the request for an adjournment of the motion. Respondent’s counsel refused to adjourn the motion.

[4] Neither the appellant nor his new counsel appeared at the motion. We have already noted that counsel had a conflicting commitment, although that does not explain why someone from her office did not attend. The appellant also did not attend. Had either the appellant or his new counsel attended on the motion, the order under appeal would likely not have been made.

[5] On the return of the motion, respondent’s counsel did not set out in detail to the motion judge the exchange that had occurred regarding the appellant’s retainer of counsel. Rather, he advised the motion judge that his office had been contacted by a lawyer on Friday afternoon but that the lawyer had “confirmed they were not retained, they’d just been consulted”. That was not a fair recitation of what respondent’s counsel had been told by the appellant’s new counsel. The reasons for not providing a full and fair report on the exchange with counsel are unsatisfactory. We have no doubt that, if the motion judge had been advised of the actual situation with new counsel, she would not have granted the order that she did. Rather, we expect that she would have adjourned the motion to another date when the appellant’s new lawyer could attend.

[6] In any event, the order granted is not warranted by the prevailing circumstances. Striking a party’s pleading is not an avenue of relief of first resort: Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 35. An order requiring the appellant to comply with the terms of the earlier consent order, together with an award of costs, would have been more appropriate. Further, it is not clear that the motion judge gave any consideration to the merits of the claim and the defence, which is a necessary factor in considering whether to grant such relief: Bell ExpressVu, at para. 36.

[7] The appeal is allowed, the order below is set aside, and the statement of defence is restored. The matter is remitted to the Superior Court of Justice to proceed in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. While the appellant’s failures to comply with his obligations under the Rules of Civil Procedure are not to be condoned, the failure of the respondent’s counsel to be full and frank with the motion judge regarding the appellant’s retention of counsel is also unacceptable. Consequently, we make no order as to the costs of the appeal.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”