Court File and Parties
MOTION HEARD: 20260629
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 830184 Ontario Limited, Plaintiffs
AND:
King’s Hollow (ARH) Homes Ltd., Jefferey Johnson, Nicole Lynn Johnson, Naunihal Saini, Sandeep Saini, Sam Hatami, Bahar Khoshnevisasl and The Corporation of the Township of King, Defendants
BEFORE: Associate Justice Jolley
COUNSEL: Natalia Sidlar, counsel for the moving party plaintiff Adam Lifshitz, counsel for the responding party defendant King’s Hollow (ARH) Homes Ltd.
HEARD: 29 June 2026
REASONS FOR DECISION
1The plaintiff seeks an order dismissing the defence and crossclaim of the defendant King's Hollow (ARH) Homes Ltd. ("King's Hollow"). The grounds advanced in support of the motion are King’s Hollows’ failure to comply with two court orders and its failure to attend an examination for discovery. These are effectively the same grounds as the earlier court orders, one by me made 27 February 2025 and one by Associate Justice Eckler made 19 November 2025 gave deadlines for King’s Hollow to attend discoveries.
2Both of those case conference orders were made necessary by King’s Hollow’s overly technical and often unsupportable views and positions. The matter came before me in 2025 because King’s Hollow calculated the discovery time the plaintiff had used to examine the other defendants in April 2024 and determined the plaintiff was entitled to examine its representative for only eight minutes on the October 2024 date to which they had all agreed. It refused to agree to more time and insisted the plaintiff proceed and see what it could accomplish and then determine if more time was needed. I ordered that the plaintiff could examine the King’s Hollow representative for an additional one hour after the examinations by the co-defendants. I ordered that the examination take place by 30 April 2025 and directed the parties to work then to find a date, given the difficulty they had historically in pinning down dates. The plaintiff proposed dates following the case conference, but got no response from King’s Hollow, other than to reject dates offered.
3Finally, the parties settled on 30 April 2025 for King’s Hollow’s discovery. King’s Hollow’s counsel cancelled the discovery in late afternoon the day before, citing illness. While that is not egregious, he did not pay the cancellation fee, as he promised and he did not provide alternative dates for the discovery until the plaintiff followed up. When asked for dates, it was his apparent position that my endorsement “was not an order”, so presumably did not need to be complied with.
4King’s Hollow did not provide dates (although it rejected a few proposed by the plaintiff) at any point between the aborted examination in April 2025 and a further case conference, necessitated by his lack of response, in November 2025. Eckler A.J. ordered King’s Hollow’s discovery to take place by 13 February 2026.
5The discovery still did not proceed. After much follow up for dates, on 4 February 2026, King’s Hollow’s counsel offered February 19, 24 or 25, all outside the deadline imposed by Eckler, A.J. After some back and forth with co-counsel, on 12 February 2026, the parties confirmed the discovery would proceed on February 19, as offered by King’s Hollow. On February 13, King’s Hollow wrote to advise that their client had not held the dates he had offered only a few days earlier and was no longer available on that date. By now, a year and a half had passed and hundreds of emails written since the October 2024 date that had been set.
6As a result of these obstacles, the plaintiff has not been able to complete discoveries or mediation and now requires a status hearing so that its action is not dismissed. The parties could avoid the need for a status hearing by agreeing to a new set down date to propose to the court, but King’s Hollow has refused to do that either. Instead, it has written that it intends to bring its own motion to dismiss the action for delay. It is of note that the only steps that remain outstanding are the discovery of its representative, which it has not attended, and mediation, which the plaintiff cannot book until it completes that discovery.
7King’s Hollow originally asked that I adjourn this motion to the status hearing on July 17, which I refused to do. I could foresee the plaintiff’s inability to examine this defendant used as ammunition for the defendant’s argument that the action should be struck due to delay. During the course of argument, King’s Hollow advised that it would not argue at the status hearing that no adverse inference should flow from the fact that the plaintiff has not been able to examine it. It ultimately advised that it would not oppose the relief sought by the plaintiff at the status hearing.
8I have not recited the other hundreds of pages submitted by the plaintiff to demonstrate its attempt to simply conduct the discovery of King’s Hollow after two court endorsements setting deadlines for that attendance.
9The defendant’s attitude is the opposite of co-operation and seems to be aimed at being as obstreperous as possible.
10Given the factors to consider on a motion to strike a pleading, King’s Hollow has come very close to having its statement of defence struck. However, I am prepared to provide it with one peremptory opportunity to mitigate its actions. It shall attend to be examined for discovery by the plaintiff on 28 July 2026 at 10:00 for up to one hour. If other parties wish to examine this defendant, they shall go first. If they do not, the plaintiff shall proceed. Mr. Lifshitz cannot attend but assures me his client will attend and either the other lawyer on record or another lawyer from his firm will attend.
11If King’s Hollow does not attend this court-ordered discovery, the plaintiff may return before me in writing for an order striking its defence. It may send a supplementary affidavit outlining its service of the notice of examination for July 28, and the defendant’s failure to attend and send it to my assistant trial coordinator at Christine.Meditskos@ontario.ca. I trust this will not be necessary.
12King’s Hollow argues that it should receive its costs of the motion if the plaintiff does not succeed in striking its defence. I disagree. The plaintiff is entitled to its costs as it was required to bring this motion simply to get a firm date for the defendant’s examination. It seeks substantial indemnity costs of the motion in the amount of $10,713.70. King’s Hollow shall pay the plaintiff its costs of $9,000, an amount midway between its substantial indemnity amount and its partial indemnity costs, and a sum I find fair and reasonable taking into consideration the factors set out in rule 57.01(1). Those costs are to be paid by 23 July 2026.
Associate Justice Jolley
Date: 30 June 2026