What is the impact of striking pleadings?

Menchella v. Menchella is an endorsement of Rogers J., dated August 28, 2013. From paragraph 7 I quote, “The court must be exceptionally cautious in striking pleadings. Litigants should have their day in court except under the most egregious circumstances. In the case at bar, the respondent says his non-compliance us because he cannot afford to pay. If his pleadings are struck, he cannot try to show the court that he should be paying a different amount. He is caught in the proverbial catch twenty-two.”

In Azimi v. Mansoury-Tehrany [2012] O.J. No. 751, McDermot J. found that the applicant had wilfully failed to comply with disclosure orders. The applicant’s pleadings were struck however the order striking pleadings was stayed for 30 days in order to allow the applicant an opportunity to complete disclosure and seek an order re-instating his pleadings.

In Gottfired v. Rosen, an endorsement of Kiteley J., dated August 2, 2012, the husband’s conduct was characterized as unreasonable but was found not to meet the high threshold required to strike pleadings. The justice set a date by which disclosure was to be completed and made a significant cost order against the husband.

The failure to disclose certain documents or values provides the court with the option of drawing an adverse inference (Goodnough v. Goodnough 2008 CanLII 25058).

The Courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage (Chernyakhovsky v. Chernyakhovsky [2005] O.J. No. 944).

From paragraph 12 of Boyd v. Fields 2006 CarswellOnt 8675 I quote, “Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I can also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issue and unduly occupy the trier of fact’s time and ultimately impair a fair trial.”