Superior Court of Justice – Ontario
Court File No.: CV-23-00092054-0000
Motion Heard: 2025-04-29
Between:
Daniel LaFlamme and Pamela LaFlamme
Plaintiffs
and
Natasha Meikle and Chris Vigliotti
Defendants
Before: Associate Justice Kamal
Counsel:
Allison Russell, for the Plaintiffs
Chris Vigliotti, Self-Represented
Natasha Meikle, Self-Represented
Reasons for Decision
Introduction
This motion was brought by the Plaintiffs as a result of a series of non-compliance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and court orders by the Defendants.
The considerations in this motion are not just technicalities. It is important for parties to comply with the Rules because they provide a structured and fair framework for resolving disputes in the civil justice system. Adherence to these procedures ensures that cases are handled efficiently, fairly, transparently, and consistently within the civil litigation system.
The integrity of the legal system is undermined when the Court permits non-compliance because it can lead to delays and increased costs. If we permit it, we promote it. The Court cannot promote non-compliance with the Rules.
The Plaintiffs are seeking an order to strike the Statement of Defence on a “with prejudice” basis on the grounds that the Defendants have failed to comply with timetables as agreed and as ordered by the Court and generally with their obligations under the Rules.
The Plaintiffs rely on four rules of the Rules of Civil Procedure:
- Rule 3.04(4) – Failure to comply with a timetable
- Rule 15.04(9) – Failure to comply with Rule 15.04(8) to appoint a new solicitor or serve a notice of intention to act in person where the litigant is served with an order removing their solicitor from the record
- Rule 30.08(2)(b) – Failure to serve an affidavit of documents in compliance with the Rules
- Rule 60.12(b) – Failure to comply with an interlocutory order
The Defendants, Chris Vigliotti and Natasha Meikle, did not file any materials on this motion. However, both Defendants attended the motion and made submissions. The Defendants also confirmed they received the motion record, factum, and draft order.
Background
The within Action arises from the Defendants' failure to close on a residential real estate transaction.
The Action was originally commenced as an Application. The Defendants responded to the Application, were represented by counsel, and conducted cross-examinations on the Plaintiffs’ affidavits in support of the Application.
At the Application hearing, the Defendants’ position was that the matter proceed as a trial.
After the Application hearing, the Honourable Madam Justice Ryan Bell ordered, among other things, that the Plaintiffs proceed to trial to settle the scope and quantum of the Plaintiffs’ damages and the issue of mitigation.
Pleadings were exchanged in 2023 as follows:
- On May 4, 2023, the Plaintiffs issued a Statement of Claim.
- On May 31, 2023, the Defendants filed their Statement of Defence.
The Plaintiffs say that the exchange of pleadings was the last meaningful step participated in by Defendants.
The parties agreed to exchange affidavits of documents by November 30, 2023. The Defendants were represented by counsel at the time. The Plaintiffs provided their draft affidavit of documents and Schedule "A" productions before November 30, 2023 as agreed, but the Defendants did not.
On July 19, 2024, a case conference was held before Associate Justice Fortier. The Defendants, Ms. Meikle and Mr. Vigliotti, attended the case conference with their counsel at the time. During the case conference, counsel for the Defendants indicated that he would be bringing a motion to be removed as counsel of record, which was scheduled for July 30, 2024. No timetable was set, and a follow-up case conference was scheduled for September 10, 2024.
On July 30, 2024, Justice Macleod granted the order to remove the lawyers for the Defendants as counsel of record. One of the provisions of Justice Macleod’s Order included the wording of subrules 15.04(8) and 15.04(9), which clearly outlines the consequences if an individual does not comply with the requirements after being served with the order removing the lawyer from the record. One of these consequences is that the court may strike the person’s defence.
On August 1, 2024, a law clerk from the Defendants’ previous law firm served the Defendants with a copy of the Order issued by Justice Macleod dated July 30, 2024, by both email and by mail. As a result, the Defendants were required to serve either a Notice of Change of Lawyer or a Notice of Intention to Act in Person by August 31, 2024, within 30 days of service.
The Defendants failed to serve either a Notice of Change of Lawyer or a Notice of Intention to Act in Person by August 31, 2024 – or anytime after that. They still have not done so.
The parties attended the previously scheduled case conference on September 10, 2025. The Defendants also attended this case conference. At that case conference, Associate Justice Fortier ordered a timetable as follows:
- By September 20, 2024, the defendants are to serve and file a Notice of Intention to Act in Person (Form 15C).
- The Defendants' sworn affidavit of documents and document briefs are to be served by October 4, 2024.
- Discoveries are to be completed by November 29, 2024.
- All undertakings are to be answered by January 31, 2025.
- A follow-up case conference is scheduled for February 12, 2025, at 11:00 a.m.
Associate Justice Fortier also sent the parties a document containing resources for civil litigation, including information for self-represented litigants.
Neither Ms. Meikle nor Mr. Vigliotti served a Notice of Intention to Act in Person by September 20, 2024, as required by Associate Justice Fortier's Endorsement dated September 10, 2024. They still have not done so.
The Defendants also did not serve a sworn affidavit of documents and document briefs. They still have not done so.
On October 1, 2024, counsel for the Plaintiffs emailed Mr. Vigliotti and Ms. Meikle at the email addresses provided to the Court to request that they serve and file a Notice of Intention to Act in Person by the end of the week, to remind them that their affidavit of documents was due by October 4, 2024, and to discuss availability for discoveries in October and November 2024.
The email for Ms. Meikle was returned as undeliverable, despite this being an email address that Ms. Meikle had previously used to communicate. This highlights the importance of why the Defendants needed to serve a Notice of Intention to Act in Person – these forms provide opposing counsel/parties and the Court with the appropriate means to communicate with parties.
There was a further case conference before Associate Justice Fortier on February 12, 2025. The Defendant, Chris Vigliotti, appeared. The defendant, Natasha Meikle, did not appear. Associate Justice Fortier’s endorsement reads:
The defendants have not complied with court orders and the plaintiff has scheduled a motion to strike the statement of defence to be heard on April 17, 2025.
A list of resources for self-represented parties is attached to this endorsement to assist the defendants to respond to the plaintiffs' motion.
To date, the defendants have not responded or complied with the timetable set by the Court on September 10, 2024 nor have they taken any steps to remedy their failures or serve a Notice of Intention to Act in Person.
During the motion, I pointedly asked each Defendant individually if they had served a Notice of Intention to Act in Person and an Affidavit of Documents. Both Defendants agreed they had not done so and provided no explanation for why they have not done so.
The Law and Analysis
Overview of Relevant Rules
- As mentioned, the Plaintiffs rely on four rules of the Rules of Civil Procedure:
- Rule 3.04(4) – Failure to comply with a timetable
- Rule 15.04(9) – Failure to comply with Rule 15.04(8) to appoint a new solicitor or serve a notice of intention to act in person where the litigant is served with an order removing their solicitor from the record
- Rule 30.08(2)(b) – Failure to serve an affidavit of documents in compliance with the Rules
- Rule 60.12(b) – Failure to comply with an interlocutory order
- I will deal with Rules 3.04(4) and 60.12(b) together. I will address Rule 30.08(2)(b) and Rule 15.04(9) individually.
Rules 3.04(4) and 60.12(b)
- Rule 3.04(4) of the Rules of Civil Procedure states:
If a party fails to comply with a timetable, a judge or associate judge may, on any other party’s motion, (a) stay the party’s proceeding; (b) dismiss the party’s proceeding or strike out the party’s defence; or (c) make such other order as is just.
- Rule 60.12(b) of the Rules of Civil Procedure states:
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
It is important to note that the Rules are in place to facilitate and secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. While they are intended to be liberally construed, they must be respected. The Court expects litigants and counsel to adhere to the Rules.
Similarly, court orders are made for a purpose and are meant to be complied with.
In Kohlsmith v. Sterling Mutuals Inc., 2014 ONSC 4696, the court struck out the Defendant’s statement of defence based on the Defendant’s non-compliance with the Rules and with the orders of two Superior Court Justices, including submitting his Affidavit of Documents. See also Kelly v. Weins Canada Inc. operating as Don Valley North Toyota, 2024 ONSC 4451.
Timetables under Rule 3.04(4) are enforceable and there are sanctions if a party fails to comply, see OZ Merchandising Inc. v. Canadian Professional Soccer League Inc. et al, 2017 ONSC 1182, paras 15, 20.
As the court stated in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, para 19:
Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice, not its master. We must allow some latitude toward unexpected and unusual contingencies that make it difficult or impossible for a party to comply.
The Defendants have failed to comply with the timetable ordered by Associate Justice Fortier on September 10, 2024. The Defendants have failed to comply with the requirements of the Rules.
In isolation, this failure may not be sufficient to strike a Statement of Defence; however, this breach must be viewed in the context of the Defendants’ failure to engage in the litigation as a whole and the significant delay in moving this matter forward since it was converted from an Application to an Action in May 2023 – at the instance of the Defendants.
The Defendants have not offered an excuse or explanation for their failure to comply with the court orders or the Rules. The Defendants have repeatedly failed to meet their obligations under the Rules and have failed to comply with court orders, the result of which has been significant: delay and increased costs to the prejudice of the Plaintiffs.
The Defendant, Mr. Vigliotti, submitted that he was present at every court attendance. While this is true, this is not compliance with his obligations pursuant to the Rules or the timetables or orders. Furthermore, this does not provide an adequate explanation for his non-compliance.
The Defendants submit that they have not been malicious in their non-compliance. However, they also have not provided any assurance or commitment to complying with any timetables or requirements under the Rules. The Defendants' repeated failure to comply with procedural requirements demonstrates a complete disregard for the Rules and the legal system. This cannot be condoned.
The Defendants were also provided resources by the Court to assist self-represented litigants in civil matters. The Defendants were given ample opportunity and resources to remedy their non-compliance with the Rules.
Striking the Defendants’ Statement of Defence pursuant to Rule 60.12(b) and Rule 3.04(4) of the Rules of Civil Procedure is the appropriate remedy for the Defendants’ refusal to comply with the Rules and with court orders.
Rule 30.08(2)(b)
- Rule 30.08(2)(b) states as follows:
Failure to Serve Affidavit or Produce Document
(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
This subrule explicitly provides that where a party fails to serve an affidavit of documents in compliance with these rules, the court may strike out the statement of defence if the party is a defendant.
In Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, para 44:
The goal of Ontario’s civil justice system is to provide the public with the just, most expeditious, and least expensive determination of every civil proceeding on its merits. To achieve that goal, parties to every action must comply with their document disclosure and production obligations without the need for a court to intervene to compel their adherence…The fundamental obligation to disclose relevant documents and produce those that are not privileged should be performed automatically by a party, without the need for court intervention.
- In Falcon Lumber at paragraph 57, the Court of Appeal provided a summary of the principles intended to guide the exercise of the court’s discretion when striking a party’s defence for non-compliance with documentary disclosure and production obligations including the following “common sense factors”:
- (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.
In addition to the above factors, the Court of Appeal in Falcon Lumber noted that in considering whether striking out a pleading is a proportionate remedy, the court should consider (i) the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action and (ii) to what extent the defaulting party’s failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits.
In the present case, it is appropriate to strike the Defendants’ defence for the following reasons:
- a. The Defendants have had since November of 2023 to serve their Affidavit of Documents.
- b. The Defendants were represented by counsel from the commencement of the action in May 2023 through to July 2024. The parties agreed to exchange affidavits of documents by November 30, 2023. The Plaintiffs have been requesting the Defendants’ Affidavit of Documents since December 2023. In furtherance of same, the Plaintiffs requested and attended at three separate case conferences. Despite these efforts, the status of the litigation has not changed and the Plaintiffs have been unable to move the litigation forward since November 2023.
- c. The Defendants’ failure is clear and unequivocal. They stated so in the hearing of this motion. It is uncontested that the Defendants have not served affidavit documents.
- d. The Defendants have provided no explanation for their failure, reasonable or otherwise and, to date, have taken no steps to cure their defaults.
- e. The default is material such that the impact of the Defendants’ failures is preventing the Plaintiffs from advancing their case towards the final adjudication on its merits.
- f. The delay has been prolonged. The Plaintiffs have been stuck in litigation purgatory while waiting for the Defendants to comply with their obligations. Since November 2023 (over a period of 16 months), all steps taken and costs incurred by the Plaintiffs have been in an effort to make the Defendants comply with their obligations under the Rules. The Defendant, Ms. Meikle, submitted that the delay is not 16 months and that the delay should only be counted from when counsel was removed from the record. I agree with the Plaintiffs that the delay has been since November 2023, when the Affidavit of Documents was originally due.
The Court of Appeal has been clear that the remedy is not restricted to last resort situations in that there must first be a series of previous breaches by the defaulting party before a court may exercise its discretion to strike a pleading. See Falcon Lumber, at paras. 50 and 57; see also DLE Consulting Inc. v. Graham, 2016 ONCA 315, para 3.
In Kanata Utilities Ltd. v. 1414610 Ontario Inc. (MAG Eastwood Construction), 2024 ONCA 367, the Ontario Court of Appeal upheld the decision of the motion judge to strike a Statement of Defence on similar facts to the case at bar and where the motion judge declined to make a “last chance” order.
Rule 15.04 (and the Related Orders)
- Rule 15.04(8) and (9) state:
(8) A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record, (a) appoint a new lawyer of record by serving a notice under subrule 15.03(2); or (b) serve a notice of intention to act in person under subrule 15.03(3). O. Reg. 575/07, s. 13(3).
(9) If the client fails to comply with subrule (8), (a) the court may dismiss the client’s proceeding or strike out his or her defence; and (b) in an appeal, (i) a judge of the appellate court may, on motion, dismiss the client’s appeal, or (ii) the court hearing the appeal may deny the client the right to be heard.
Furthermore, the Order of Justice Macleod dated July 30, 2024 and the Order of Associate Justice Fortier dated September 10, 2024 outlined the obligations and consequences for the Defendants that flow from the Order removing their counsel. The Order of Associate Justice Fortier even extended out the time by which the Defendants were required to serve a Notice of Intention to Act in Person to September 20, 2024 and to serve their Affidavit of Documents to October 4, 2024.
The Defendants have neither appointed a new solicitor nor served a notice of intention to act in person, despite the clear orders.
Just as dismissing an action is a severe remedy, striking a defence is also a severe remedy. I must consider the positions carefully.
My decision on this motion is discretionary.
In isolation, this failure to comply may not be significant. However, the Court must consider the practical impact of non-compliance.
The importance of this Rule ensures that legal proceedings continue without unnecessary delays.
The consideration in applying this Rule must be fairness – fairness to all parties.
Counsel for the Plaintiffs has had to communicate with the Defendant, Ms. Meikle, using multiple email addresses. On occasion, the email was returned as undeliverable, despite it being the same email address from which Ms. Meikle had previously confirmed receipt of emails from the Court.
The Plaintiffs are entitled to certainty in proceeding with this litigation. This includes certainty in the method of communication between the parties.
One of the purposes of Rule 15.04 and the obligations outlined therein is to assist the Court and parties to be clear on the method that counsel, parties, and the Court may communicate with each other. Communication is a key component of the litigation process. The Rules facilitate communication between parties and counsel. If these are not complied with, communication becomes challenging. That hinders the litigation process overall and is contrary to the objective of the Rules.
Rule 15.04 and its obligations also facilitate access to justice and procedural fairness. Therefore, a breach of this Rule is not simply a technicality – it curtails the entire process and increases costs for the other parties.
Conclusion
Accordingly, based on the totality of the evidence and the multiple non-compliance with the obligations of the Rules and multiple court orders, the relief requested by the Plaintiffs is appropriate. The Plaintiffs’ motion is granted in its entirety.
Parties may provide written cost submissions (maximum of 5 pages) to my attention through the Office of the Associate Judges within 14 days.
Kamal
Date: May 6, 2025