The Plaintiff’s recourse where a Defendant fails to attend examination for discovery

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Written By: Patrick Brown and Ryan Marinacci, Student-at-Law

“Repeated delays and failures to comply with procedural orders affect not only the parties to the action. They significantly increase the cost of the administration of justice due to the impact on administrative and judicial resources. Repeated breaches of orders must attract significant sanctions otherwise the Case Management Rules will become ineffectual and the ultimate goal of the rules will be unattainable.”

– Justice Ferrier writing for the Divisional court in Vacca v. Banks 2005 CarswellOnt 146

Court-ordered time tables are essential in complex multi-party litigation.  For the trial to be set down within five years of the claim being issued, cooperation among counsel and compliance with the dates imposed by the judge is critical where related actions contain third-party, cross and counterclaims.

But what happens when a Defendant flouts the time table and fails to attend at his or her scheduled examination for discovery?  Does the Plaintiff have any recourse?

Yes.  The Plaintiff can bring a motion to strike pleadings under R34.15(1)(b) or for any order that is just under ss. (d).  Courts are more inclined to strike defences where multiple Orders have not been complied.  The first step then is to obtain a certificate of non-attendance at examination for discovery where a Defendant does not attend.  Next, Plaintiffs may bring a motion under R. 34.15(1)(d) for an Order requiring the Defendant to attend examinations for discovery at a specified date.  Where the Defendant fails to attend again, the Plaintiff may succeed in striking the Defence under ss. (b).

In Ornstein (Litigation Guardian) v. Starr, 2011 ONSC 4220 (CanLII) the Plaintiff successfully obtained an Order requiring a representative of the Defendant hospital to attend at examination for discovery at a date to be determined by the court.  This was despite the Hospital’s position that conceding liability meant it was entitled to advanced notice of all questions related to damages, which the court concluded it was not.

In Amy Skelton et. al. v. Anthony Police et. al., 2000 CarswellOnt 4058, the Defendant was ordered to attend examination for discovery within 60 days of the Order.  The Defendant had resisted on the basis that he was subject to criminal charges for the same incident that gave rise to the civil actions.  The court disagreed and ordered his attendance, subject to a formal stay of proceedings application under s. 106 of the Courts of Justice Act.

Likewise, the respective Defendants were ordered to attend at examinations for discovery within six days of the Order and at a date to be determined by the court in Royal Bank v. 55 Dennison Road East Properties Ltd., 1991 CarswellOnt 407 and in Tong v. Ing et al., 1988 CarswellOnt 538.

If a Party fails to attend again, the court may strike pleadings because multiple orders will have been ignored.

In 1860035 Ontario Ltd. v Velika Realty Inc., 2016 ONSC 470, which was upheld on appeal, the court struck the defence where the defendant failed to comply with several orders including to attend court-ordered examination for discovery.  In striking the defence and ordering the action to proceed to trial undefended, the court relied on the authority of R34.15(1), R60.12(b), R3.04(4) and Vacca v. Banks, where the entire action was dismissed because the plaintiffs ignored multiple Orders.  The action was similarly dismissed under R.34.15 in Cardoso v. Cardoso, 1998 CarswellOnt 896 for the plaintiff’s repeated failure to comply with disclosure obligations.

Judiciously prosecuting actions is necessary to obtain a favourable result and in this respect, the evidence obtained on examination for discovery plays a critical role.  Without examinations for discovery, the case cannot proceed to trial.  In order to advance the case, Orders mandating dates and compliance with those dates can be required.  And where a Party fails to comply with several such Orders, the consequences imposed by the court can be as severe as striking defences or dismissing actions.

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