COURT OF APPEAL FOR ONTARIO
DATE: 20251212
DOCKET: COA-25-CV-0326
Simmons, Miller and Wilson JJ.A.
BETWEEN
Fox Excavating & Grading Ltd.
Respondent (Plaintiff)
and
Vandyk-Summerhill Limited, John Vandyk, Richard Ma*, Xyz Corp., John Doe, Vandyk Holdings Incorporated, Vandyk-West Park Village Limited, Vandyk-The Craftsman Limited, Vandyk-Windows on the Green Limited, Vandyk Properties Incorporated, Vandyk-Vanmills Plaza Inc., Vandyk Commercial Co. Limited, Vandyk-Humberview Trails Limited, Vandyk Commercial Co. Inc., Vandyk-Wyndham Place Ltd., Vandyk-Park 570 Ltd., Vandyk-Uptowns Limited, Vandyk-Backyard Humberside Limited, 2012299 Ontario Inc., 2247131 Ontario Inc., 1367027 Ontario Inc., And 2384903 Ontario Inc.
Appellant* (Defendants)
Michael Simaan, for the appellant
Jonathan Goode and Marco P. Falco, for the respondent
Heard and rendered orally: December 10, 2025
On appeal from the order of Justice Irving W. André of the Superior Court of Justice, dated February 12, 2025.
REASONS FOR DECISION
[1] The appellant, Mr. Ma, failed to comply with two orders, the first of which was peremptory, requiring that he answer undertakings before the motion judge gave him a final chance to do so (the “Last Chance Order”). These orders were the culmination of a series of prior orders, aimed at compelling production and discovery from the defendants. When the appellant failed to answer the undertakings as directed under the Last Chance Order, the motion judge struck his pleadings and those of the other defendants with whom he had filed a defence [1].
[2] The motion judge was aware of the appellant’s argument that he was precluded from answering the undertakings because he had left his position as CFO of all of the corporate defendants after the original peremptory order was made. However, in light of the appellant’s long history as the CFO of all of the corporate defendants and the absence of evidence of a serious effort to attempt to locate and obtain the requested information, the motion judge concluded the appellant had not complied with his best-efforts obligation.
[3] We see no basis on which to interfere with the motion judge’s discretionary determination, which is entitled to deference from this court. His finding that the appellant had not complied with his best-efforts obligation was available on the record. Further, we are satisfied that the motion judge relied on Halifax Dartmouth Bridge Commission v. Walter Construction Corp. 2010 NSSC 350, 296 N.S.R. (2d) 61 as part of the basis for striking the corporate defendant’s pleadings.
[4] The appeal is dismissed.
[5] Costs of the appeal will be to the respondents on a partial indemnity scale in the agreed upon of $32,000 inclusive of disbursements and HST.
“Janet Simmons J.A.”
“B.W. Miller J.A.”
“D.A. Wilson J.A.”
[1] The several corporate defendants added under an order dated January 15, 2024 had previously been noted in default.