



COURT OF APPEAL FOR ONTARIO

CITATION: Roffey v. Hunter Corporation, 2015 ONCA 824

DATE: 20151130

DOCKET: C60452

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Lucas
    Roffey, TD Waterhouse Canada Trust Inc.
in trust for RRSP #
    46HM13S, TD Waterhouse Canada Trust Inc.
in
    trust for RRSP # 5557000S, Alan Roffey

Plaintiffs (Respondents)

and

Hunter
    Corporation, Hunter Promenade Corporation,

1355394 Ontario Inc., Richard K. Watson

Defendants (
Appellants
)

Michael Simaan, for the appellants, 1355394 Ontario Inc.
    and Richard K. Watson

D. Gordon Bent, for the respondents

Heard: November 24, 2015

On appeal from the order of Justice Bruce A. Glass of the
    Superior Court of Justice, dated April 21, 2015.

ENDORSEMENT

[1]

The motion judge granted the respondents motion and struck the
    appellants defence. He provided only the following reason: Def. Watson has not
    filed material as directed by order of OConnell J. on Feb 19/15.

[2]

The appellants make three submissions on
    appeal. First, they argue that the motion judge ought to have provided them with
    a chance to cure the default. Second, they contend that the motion judge failed
    to consider the proportionality of the remedy and the merits of the defence.
    And third, that because the response to undertakings was only 35 days late, it
    was unreasonable to strike the defence.

[3]

We reject each of the appellants
    submissions.

[4]

The first observation we make is that the appellants did not file
    responding materials on the motion
to explain or
    excuse their failure to produce the answers and documents ordered to be
    delivered
. Thus, there was no evidence before the motion judge to
    provide any explanation for the failure to satisfy the undertakings and no
    evidence that they had any defence to the action.

[5]

Indeed, on appeal, the appellants still do not explain what their
    argument would have been to the striking of the defence or why they were unable
    to comply with the order that led to the order to strike their defence. Moreover,
    they do not explain why they were and have been unable to satisfy their
    undertakings. In addition, they do not claim to have satisfied any more of
    their long overdue undertakings, nor that they will do so promptly if the
    appeal is allowed.

[6]

The appellants had an opportunity to cure this default. They were served
    with a notice of motion for contempt and failed to appear on the return date.
    The motion was adjourned and they had time in the interim to comply with the
    order or to explain their default. They did neither.

[7]

The motion judge could not have considered the merits of the appellants
    defence because they put no evidence before him. As to proportionality and the
    duration of the delay, the motion judge was in a position to consider the
    relief sought in the context of the entire litigation. That context included
    lengthy delays and conduct of the appellants that could be regarded as both
    dilatory and deliberately obstructionist. It also included the fact that the
    order at issue was made on consent and the appellant Watson was a solicitor.

[8]

The brevity of the motion judges reasons does not cause us any concern.
A failure to specifically refer to the factors
    to be considered in striking a pleading may be excused if the record supports
    the decision
:
Diamond Auto Collision Inc. v. Economical Insurance
    Group
,
2007 ONCA 487. Here, the
    order to strike the defence was an obvious result, given all the circumstances.
    The appellants answers to undertakings were long overdue and breached multiple
    court orders.

[9]

The motion judges order to strike the defence was discretionary. Absent
    clear error, it is entitled to significant deference from this court:
Diami
    Inc. v. Papadakos
, 2012 ONCA 879. The appellants have failed to convince
    us that any such error was committed. The appeal is dismissed.

[10]

The
    respondents are awarded costs of the appeal in the amount of $9,600 inclusive
    of disbursements and HST.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

"Grant
    Huscroft J.A."


