This recent Ontario Court of Appeal decision is very brief, but it delves into two important legal principles: a) striking out a litigant’s pleading should not be the remedy of choice when addressing the litigant’s procedural defaults, and b) the importance of coming to court with clean hands.
The defendant successfully appealed the lower court order striking out his Statement of Defence as a result of his failure to comply with a few procedural discovery related timelines imposed by the court in a prior order. The appellate court restored his defence for two primary reasons:
- They felt that the plaintiff’s representative misled the lower court by not advising the motions judge of the full extent of the dialogue they had with a lawyer who advised the plaintiff’s representative that he was trying to shore-up a retainer with the defendant and seeking a short adjournment. The appellate court believed that had that information been disclosed, the motions judge would have granted a short adjournment instead of striking out the defence; and
- Irrespective of whether a new lawyer was coming on-board, the appellate court said that the order should never have been made in the first place because “striking a party’s pleading is not an avenue of relief of first resort.” The appellate court was of the view that it was more proper to make a further order for compliance, together with an award of costs. The appellate court was also critical of the motions judge for not assessing the merits of the claim and defence which they said was an important step when striking a party’s pleading, presumably under the pretext that the court should be very hesitant to strike a meritorious pleading (and conversely less concerned, and perhaps more justified, in striking a meritless pleading).
Of further interest, the appellate court called the lack of candour on the part of the plaintiff’s representative “unacceptable,” and relied on this as a factor to deny the plaintiff any costs on the appeal.
Best Advice for Practicing Legal Professionals
Preserve your honesty and integrity before your colleagues and the court at all times – the respect it garners is hard to earn, easy to lose, and once lost, often impossible to restore.
Brown v. Williams, 2023 ONCA 777
https://www.canlii.org/en/on/onca/doc/2023/2023onca777/2023onca777.html