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Civil Litigation Dicta - Discovery - Non-Compliance. Maplequest (Vaughan) Developments Inc. v. Primont Homes (Vaughan) Inc.
In Maplequest (Vaughan) Developments Inc. v. Primont Homes (Vaughan) Inc. (Ont Div Ct, 2026) the Ontario Divisional Court considered the test for dismissal for non-compliance:[17] In Falcon Lumber, the Court of Appeal approved the following comments of the Divisional Court in Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009), 2009 CanLII 30449 (ON SCDC), 252 O.A.C. 19 (Div. Ct.):The authority to dismiss proceedings for repeated failure to comply with court orders and flagrant disregard for the court process is an essential management tool. A case management judge or master who has a continuous connection with an action, the parties and their counsel is well-positioned to monitor the conduct of the participants throughout the proceedings, and to determine whether anyone is deliberately stalling, showing bad faith or abusing the process of the court when deadlines are missed and defaults occur under procedural orders. A decision to dismiss an action or strike a pleading because of such defaults is entitled to deference, unless that decision is shown to have been exercised on wrong principles or based upon a misapprehension of the evidence such that there is a palpable and overriding error. [18] The Court of Appeal in paragraph 57 of Falcon Lumber also set out the following governing principles and factors to consider, to which both counsel referred:[57] To summarize, several principles guide the exercise of a court’s discretion to strike out a party’s claim or defence under r. 30.08(2) for non-compliance with documentary disclosure and production obligations:. The remedy is not restricted to “last resort” situations, in the sense that it must be preceded by a party breaching a series of earlier orders that compelled better disclosure or production. However, courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading;
. A court should consider a number of common sense factors including: (i) whether the party’s failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case;
. The merits of a party’s claim or defence may play only a limited role where breaches of disclosure and production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations;
. In considering whether an order to strike out a pleading would constitute a proportional remedy in the circumstances, a court should consider:. the extent to which the defaulting party’s conduct has increased the non-defaulting party’s costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and
. to what extent the defaulting party’s failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute. [19] Those factors were applied again by the Court of Appeal in Advanced Farm Technologies-JA v. Yung Soon Farm Inc., 2021 ONCA. More recently, in Rimon v. CBC Dragon Inc., 2024 ONCA 128, the Court of Appeal considered a motion to strike in the context of failure to produce documents. The Court stated, at para. 25,The Rules are intended to ensure that parties to civil suits disclose all relevant information in a timely manner at all stages of a proceeding. A party’s failure to comply with their disclosure obligations increases the costs of litigation and frustrates the opposing party’s ability to move the proceeding forward. The Falcon Lumber principles apply even more forcibly when a party fails to disclose records when repeatedly ordered by the court to do so within a specific deadline. In such a case, the defaulting party does not simply delay or prevent an adjudication on the merits but undermines the court’s authority. [20] Maplequest acknowledges the competing principles in cases of this kind, as set out in Starland:The policy underlying the Rules of Civil Procedure is twofold: to ensure that cases that are not settled are tried on their merits; and to ensure that cases are processed, and heard, in an orderly way. A civilized society must ensure that a credible system of justice is in place, and the Rules of Civil Procedure, made pursuant to the Courts of Justice Act, reflect the scheme created by the Province for the orderly handling of civil cases. . Total Meter Services Inc. v. GVM Integration
In Total Meter Services Inc. v. GVM Integration (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal in part, here from a finding "for breach of fiduciary duty and breach of confidence".
Here the court considered an 'adverse inference' issue where the defendant failed "to produce relevant documents during discovery":[7] In her assessment of the credibility of Mr. Roberge’s evidence, the trial judge drew an adverse inference against Mr. Roberge on the basis that he failed to comply with his obligation under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to produce relevant documents during discovery. ....
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[11] This evidence provided an ample basis for the trial judge to draw an adverse inference in assessing Mr. Roberge’s credibility for failing to produce the GVM source code in the Visual Basic programming language. As there was an evidentiary basis for the adverse inference (i.e., this is not a “no evidence” situation), the trial judge’s credibility assessment and her decision to draw an adverse inference as part of that assessment are entitled to deference: 1468025 Ontario Limited v. 998614 Ontario Inc., 2016 ONCA 504, at paras. 14-15. I see no palpable and overriding error in her decision to draw an adverse inference.
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[13] The appellants argue that if the respondent wanted to pursue the issue of the appellants’ failure to comply with discovery obligations under the Rules, it was required to bring a pre-trial motion seeking a remedy under rule 30.06, such as cross-examination on the appellants’ affidavit of documents, a further and better affidavit of documents, or inspection of documents. The appellants argue that, not having brought such a motion, the respondent was taken to have accepted counsel for the appellants’ representation that complete production of the GVM source code had been made.
[14] I disagree. Although a pre-trial motion under rule 30.06 was an option available to the respondent, its choice not to pursue such a motion did not preclude the respondent from seeking an adverse inference at trial. There was no procedural unfairness to the appellants from the respondent arguing at trial that an adverse inference should be drawn against the appellants on the basis of incomplete disclosure of the GMS source code and the fact that it was disclosed in a language other than Visual Basic.
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