Philip Morrissey

The plaintiffs brought a motion in writing on consent for an order requiring the defendants to satisfy undertakings and requiring two non-party banks to produce documents.

The court dismissed the motion, finding that a production order against non-parties under Rule 30.10 cannot be granted merely on the consent of the existing parties.

The moving party must serve the non-parties with notice and provide evidence satisfying the requirements of Rule 30.10.

The dismissal was without prejudice to the plaintiffs' ability to bring a fresh, compliant motion.

The appellant, an egg producer, appealed a motion judge's decision dismissing its motion to belatedly comply with a 2013 judgment order requiring payment into court.

The appellant had failed to pay the judgment funds into court, failed to bring a motion to add respondents as defendants to a related action, and took no further steps to advance its counterclaim for five years.

When the appellant finally returned to court in 2018, it sought permission to proceed with the counterclaim and amend it.

The motion judge applied the test from Rule 48 (dismissal for delay), placing the onus on the appellant to establish an acceptable explanation for the delay and that respondents would suffer no non-compensable prejudice.

The motion judge found the appellant's explanation inadequate and concluded actual prejudice existed.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's legal test or factual findings.