Signal Chemicals Ltd. v. Singh et al., (2014) 325 O.A.C. 377 (DC)

• Judge: Horkins, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 09, 2014
• Jurisdiction: Ontario
• Citations: (2014), 325 O.A.C. 377 (DC);2014 ONSC 5228

Signal Chemicals Ltd. v. Singh (2014), 325 O.A.C. 377 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. OC.013

Signal Chemicals Ltd. (plaintiff/respondent) v. Harinder Singh, Rakesh Sharma, Kawarjit Kalsi and Re/Max Hallmark Realty Ltd. (defendants/appellants)

(122/14; 2014 ONSC 5228)

Indexed As: Signal Chemicals Ltd. v. Singh et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Horkins, J.

September 9, 2014.

Summary:

The defendant was examined for discovery and gave a number of undertakings. He did not comply with the undertakings. As a result, the plaintiff brought a motion for an order directing compliance with undertakings and questions refused or taken under advisement. The defendant complied with all the undertakings before the motion was heard. A Master ordered that the defendant answer the questions and pay costs. The defendant paid the costs on time but did not comply with the rest of the order. The plaintiff moved to strike the defendant's statement of defence and counterclaim. A Master allowed the motion, striking the statement of defence. The defendant appealed.

The Ontario Divisional Court, per Horkins, J., allowed the appeal.

Practice - Topic 2237

Pleadings - Striking out pleadings - Grounds - Failure to obey court order - The defendant was examined for discovery and gave a number of undertakings - He did not comply with the undertakings - As a result, the plaintiff brought a motion for an order directing compliance with undertakings and questions refused or taken under advisement - The defendant complied with all the undertakings before the motion was heard - A Master ordered that the defendant answer the questions and pay costs - The defendant paid the costs on time but did not comply with the rest of the order - The plaintiff moved to strike the defendant's statement of defence and counterclaim - A Master allowed the motion, striking the statement of defence - The defendant appealed - The Ontario Divisional Court, per Horkins, J., allowed the appeal - The Master did not exercise her discretion according to legal principles - The Master struck the statement of defence and counterclaim because she concluded that she had "no choice" - This was an error of law - The law was extremely clear that there was a choice to be made that involved a consideration of whether or not such an extreme remedy was required or whether a lesser remedy would suffice - No consideration was given to ordering compliance within a short fixed period of time, making such an order a "last chance" order and directing that the pleading would be struck if compliance did not follow - The substance of the default and its impact on the ability of the court to do justice was not considered in the Master's brief endorsement.

Cases Noticed:

Zeitoun et al. v. Economical Insurance Group (2009), 91 O.R.(3d) 131 (Div. Ct.), affd. 257 O.A.C. 29; 2009 ONCA 415, refd to. [para. 10].

Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), refd to. [para. 16].

Bell ExpressVu Limited Partnership v. Torroni et al. (2009), 246 O.A.C. 212; 2009 ONCA 85, refd to. [para. 19].

Dew Point Insulation Systems Inc. v. JV Mechanical Ltd. et al. (2009), 259 O.A.C. 179; 2009 CarswellOnt 8064 (Div. Ct.), refd to. [para. 19].

Tizard Estate v. Ontario, [2001] O.T.C. 760 (Sup. Ct.), refd to. [para. 21].

Rock Precast Erectors Ltd. v. Canadian Precast Ltd. et al., [2012] O.A.C. Uned. 677; 2012 ONSC 5924 (Div. Ct.), dist. [para. 25].

Counsel:

Ron J. Aisenberg, for the plaintiff/respondent;

M. Michael Title, for the defendants/appellants.

This appeal was heard at Toronto, Ontario, on September 9, 2014, by Horkins, J., of the Ontario Divisional Court, who delivered the following decision orally on the same date.