Porter v. Hogue, 2022 ONSC 4169

COURT FILE NO.: CV-20-00084673-0000

DATE: 2022-07-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Porter v. Matt Hogue

BEFORE: Associate Justice A. Kaufman

COUNSEL: Geoffrey Cullwick, for the Plaintiff/Moving Party

No one appearing, for the Defendant

HEARD: July 14, 2022

E N D O R S E M E N T

1The plaintiff brings this motion to strike the defendant’s statement of defence and counterclaim for failure to comply with his disclosure obligations, failure to attend examinations, and failure to comply with a court order.

2The plaintiff commenced this action on October 19, 2020, seeking payment from the defendant on a promissory note. His claim is for a modest amount ($67,000). The defendant was initially represented by counsel, but is now representing himself. The defendant defended the action and counterclaimed. The pleadings closed on December 23, 2020.

3The plaintiff brings this motion under Rules 30.08(2)(b), 34.15(1)(b) and 60.12.¹ These Rules read as follows:

30.08 (2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may,

(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant; and

(c) make such other order as is just.²

34.15 (1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that he or she is required to produce or to comply with an order under rule 34.14, the court may,

(b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence;

60.12 Where a party fails to comply with an interlocutory order, the court may in addition to any other sanction provided by these rules,

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.³

4The plaintiff relies on the following facts in support of his motion:

a) The defendant failed to attend agreed upon examinations for discovery on August 24, 2021. A certificate of non-attendance was obtained.

b) The defendant attended an examination for discovery on November 11, 2021, and gave a total of 31 undertakings, which remain outstanding.

c) The defendant failed to attend a further day of examinations for discovery on December 14, 2021. A certificate of non-attendance was obtained.

d) The defendant did not serve an affidavit of documents by November 11, 2021, as he had agreed.

e) The plaintiff requested a case conference which was held before me on March 10, 2022. The defendant did not appear, but an agent appeared on his behalf and consented to a timetable. The Court ordered that the defendant serve his affidavit of documents by April 10, 2022, and that examinations for discovery be completed by June 30, 2022.

f) The defendant failed to comply with my case conference order of March 10, 2022, and rather than providing an affidavit of documents, simply forwarded 7 emails to the defendant’s counsel without context.

g) Finally, the defendant did not attend at today’s motion.

5The Court of Appeal for Ontario recently reviewed the principles that guide the striking out of pleadings for breach of production obligations.⁴ Striking out a pleading under Rule 30.08(2)(b) is not solely restricted to a remedy of last resort, which must be preceded by a series of prior breaches of court ordered disclosure. That said, courts usually want to ensure that a party has a reasonable opportunity to cure non-compliance before striking out pleadings.⁵ Here, the defendant had a reasonable opportunity to cure his non-compliance at the March 10, 2022 case conference. He agreed, through his agent, to a timetable for the service of his affidavit of documents and answers to his undertakings. The defendant failed to comply with the order made at that case conference.

6The factors guiding the exercise of the court’s discretion when faced with a motion to strike pleadings for non-compliance with disclosure obligations include the following:

(i) whether the party’s failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case.⁶ The Court must [also] consider whether an order to strike out a pleading would constitute a proportional remedy.⁷

7In weighing these factors, I conclude that the defendant’s statement of defence and counterclaim ought to be struck. The defendant has failed to provide an affidavit of documents, failed to attend examinations for discovery twice, failed to answer his undertakings, and failed to comply with a court order. He did not attend at today’s motion, despite being served, and has accordingly provided no explanation for his default.

8The plaintiff commenced this action over 21 months ago, and the defendant’s actions have caused delay and put the defendant to the needless expense of having to prepare twice for examinations which did not proceed, attending a case conference, and bringing this motion. The amount of the claim, while modest by Superior Court standards, represents a significant sum for the plaintiff. He should not be required to spend a significant percentage of the damages sought just to have the defendant comply with his obligations under the Rules of Civil Procedure. Giving the defendant one more chance, in these circumstances, would undermine this court’s objective of providing accessible, timely and affordable justice. As Brown J.A. recently commented in Falcon Lumber v. 2480375 Ontario Inc., parties who default on their disclosure obligations impede the ability of our justice system to provide the fair, timely, and cost-effective adjudication of civil disputes on their merits. In my view, it would be unreasonable to require the defendant to incur additional expenses and delays to pursue payment on the promissory note that is the subject of this action, and the defendant has not shown any interest in prosecuting his counterclaim. Justice would be best served by striking the defendant’s statement of defence and counterclaim.

9The plaintiff provided a costs outline. His counsel was called in 2015, and appropriately delegated certain tasks to more junior counsel and clerks. The plaintiff claims $7,070 for fees on a substantial indemnity basis and $2,087 in disbursements. I would deduct the disbursements relating to the examination fee and the transcript of the examination which did proceed, as these disbursements relate to the action as opposed to this motion. The plaintiff may claim these disbursements as costs of this action.

10I fix the plaintiff’s costs in the amount $7,500, payable forthwith.

11This Court orders that:

a) The defendant’s statement of defence and counterclaim are hereby struck.

b) The plaintiff shall have his costs of the motion, fixed in the amount of $7,500, payable forthwith.

Alexandre Kaufman

Associate Justice A. Kaufman

Footnotes

1. 1Rules of Civil Procedure, R.R.O. 1990, Reg.194.
2. 2Ibid, r. 30.08 (2).
3. 3Ibid, r. 60.12.
4. 4Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310.
5. 5Ibid, at para. 50.
6. 6Ibid, at para. 51.
7. 7Ibid, at para. 53.