The defendant continually breached orders requiring production of documents. The motion judge struck out its statement of defence and ordered costs of the motion against the defendant’s lawyers. The Court of Appeal upheld the decision and set out a number of factors when considering whether to strike out a party’s pleadings and indicated that these factors should include the extent to which the defaulting party’s conduct has increased the other party’s cost of litigating the action and delayed the final adjudication of the case on its merits. The court noted that the moment to make the order to strike will come much earlier in a simple claim for a modest amount than in a more complex one. In that regard, the court referenced the claim of $131,000 as modest. The Court also upheld the costs decision against the lawyers. They requested and received and adjournment ultimately determined to be no more than a delay tactic, provided final production of documents that were improperly redacted, and were complicit in the flagrant disregard of the Rules. Further, the Court noted that the lawyers were in a conflict of interest by acting for both the client and themselves on the appeal.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.