The moving party plaintiff brought a motion to strike the defences of multiple defendants who had repeatedly failed to comply with court orders requiring payment of costs and delivery of affidavits of documents.
The court applied the test from Falcon Lumber, considering whether the failures were deliberate, clear and unequivocal, whether reasonable explanations were provided, and whether the remedy was proportionate.
The court found the failures of four defendants — including a corporate defendant whose sole director is not a lawyer and who had not retained counsel as ordered — to be deliberate and unexcused, warranting the striking of their defences.
One defendant whose obligations had been fulfilled on the eve of the motion was spared.
The defendants whose defences were struck were ordered to pay costs jointly and severally.
