



COURT OF APPEAL FOR ONTARIO

CITATION: DLE Consulting Inc. v. Graham, 2016 ONCA 315

DATE: 20160428

DOCKET: C60906

Laskin, Pepall and Brown JJ.A.

BETWEEN

DLE Consulting Inc.

Plaintiff (Respondent)

and

Paul Graham, Paul Graham c.o.b. as Alpine Engineering, Alpine Systems
    Engineering Ltd., Patrick OMalley and Patrick OMalley c.o.b. as Alpine
    Engineering

Defendants (Appellants)

AND BETWEEN

Paul Graham c.o.b. as Alpine Engineering and c.o.b.
    as Alpine Systems Engineering

Plaintiff by Counterclaim (Appellants)

and

DLE
    Consulting Inc. and David DesLauriers and Michael DesLauriers

Defendants by Counterclaim (Respondents)

Alexander Nicholas Zivkov, for the appellants

Jordan D. Sobel, for the respondent

Heard and released orally: April 25, 2016

On appeal from the order of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated July 14, 2015.

ENDORSEMENT

[1]

The motion judge struck the defendants statement of defence and
    counterclaim for failure to produce an affidavit of documents. The appellants
    main submission on appeal is that the motion judge had no jurisdiction to make
    the order under appeal because it was made under Rule 76, even though the
    appellants have continued the litigation under the ordinary procedure.

[2]

We do not accept this submission. The motion judges order does not
    refer to Rule 76. The respondents notice of motion does refer to Rule 76 but
    also to Rule 30. Moreover, even if the order was made under Rule 76 and should
    have been made under the ordinary procedure, this is at best a technical
    irregularity, which did not deprive the motion judge of jurisdiction to strike
    the appellants pleading.

[3]

The appellants had twice been ordered to produce an affidavit of
    documents and failed to do so. Even today the appellants still have not
    delivered an affidavit. The motion judges order is discretionary. We are
    satisfied that she exercised her discretion reasonably, even though the result
    of her decision will deny the appellants a chance to defend the respondents
    claim on the merits.

[4]

The appeal is dismissed with costs to the respondent in the amount of $6,100,
    all inclusive.

John
    Laskin J.A.

S.E.
    Pepall J.A.

David
    Brown J.A.


