



COURT OF APPEAL FOR ONTARIO

CITATION: Glasco v. Bilz, 2015 ONCA 83

DATE: 20150204

DOCKET: C59331

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Kimberly Glasco

Applicant

(Respondent on Appeal)

and

Christopher Bilz

Respondent

(Appellant)

Dani Z. Frodis and Daniel Bernstein, for the appellant

Steven M. Bookman, Chris Stankiewicz and Maia
    Rabinovitch, for the respondent

Heard and released orally: January 15, 2015

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated September 2, 2014.

ENDORSEMENT

[1]

We consider the decision of Mesbur J. to be a final order.  In our view,
    the subsequent decision of Kruzick J. declining to consider on the merits a motion
    to reinstate the pleadings has no impact on our jurisdiction to hear this
    appeal from the order of Justice Mesbur.

[2]

The decision of Mesbur J. to strike the appellants pleadings on certain
    issues for non-compliance with various disclosure orders was an exercise in her
    discretion which is entitled to deference in this court absent error in
    principle or material misapprehension of the evidence.

[3]

The motion judge correctly identified the operative principles in the
    last sentence of paragraph 24 of her reasons.

The issues is whether the respondent remains in default,
    whether his default is wilful, and if so, whether striking his pleadings is the
    only appropriate remedy available.

[4]

We will address each of those three criteria.

[5]

On the material, there can be no doubt that required disclosure remained
    outstanding at the time of the motion before Mesbur J.  The respondents
    affidavit identified in detail many deficiencies in the appellants
    productions.  The appellants affidavit addressed many of those alleged deficiencies
    but also left many entirely unaddressed.  There was ample ground upon which the
    motion judge could find that the respondent was in default of the production
    orders at the time of the motion.

[6]

There was also ample evidence from which the motion judge could find
    that the default was wilful.  That evidence included the evidence that the
    default continued over almost two years and had been the subject of various
    court orders.  As the motion judge indicated, the appellant had many
    opportunities to comply with the disclosure order and failed to do so.

[7]

The responses fashioned by the appellant on the motion to strike are
    also relevant to the question of wilfulness.  The appellant chose on the motion
    judges finding to obfuscate the nature and extent of his response to the
    disclosure obligation leaving the motion judge unable to satisfy herself as to
    the extent to which the appellant had complied with the order.  The motion
    judge observed at paragraph 30:

I am not going to do the respondents work for him.  The
    applicant, as required, has set out specifically the disclosure still missing
    from what the respondent was ordered to produce.  If the respondent cannot show
    that he has produced the information, or provides a credible and compelling
    reason why he cannot do so, (as he was ordered to do) his pleadings must be
    struck.  I am not persuaded the respondent has met his burden.  He could have
    done so, simply by responding specifically regarding the missing information. 
    He has not.  I infer he deliberately chose how to respond to this motion.  His
    response speaks volumes  both literally and figuratively.

[8]

It was open to the motion judge to view the appellants response as part
    of a strategy designed to avoid compliance with the outstanding disclosure
    orders.  In our view, that strategy is indicative of a wilful disobedience.

[9]

Finally, with respect to the remedy imposed, we acknowledge that
    striking pleadings is a drastic remedy.  However, in this case the motion judge
    mitigated that remedy by including the provision that the appellant could move
    to reinstate his pleadings on proper evidence.  The motion judge made it
    clear in her reasons what would be needed by way of proper evidence to
    facilitate the reinstatement of the pleadings.  The appellant chose not to
    pursue that avenue in a timely fashion.

[10]

The
    appeal is dismissed.  Costs are awarded to the respondent in the amount of
    $10,000 inclusive of disbursements and relevant taxes.

Doherty
    J.A.

R.G.
    Juriansz J.A.

Huscroft
    J.A.


