This was an application by the wife to strike the husband’s pleadings, based on his failure to provide a life insurance policy and disclosure in accordance with numerous court orders. Of note is that the initial application made by Mrs. Grenier was dated February 2003.
Rule 1(8), “Failure to follow rules or obey order,” Rule 14(23), “Failure to obey order made on motion,” and Rule 19(10), “Failure to follow the rules of document disclosure” all grant the court power to dismiss the offending party’s case or strike pleadings, and all three rules were engaged in this case.
Nevertheless, striking pleadings is an extreme remedy that has a particularly detrimental effect upon the non-compliant party, and the court’s discretion to do should be exercised with caution. Justice Rogers lists 12 factors the court must weigh to determine whether the non-disclosure constitutes a breach severe enough to warrant the striking of pleadings:
- What was the overall effort to complete disclosure relative to the undisclosed items, and what ratio does the completed disclosure bear to the undisclosed items?
- Are the missing pieces of disclosure relevant to significant issues in the file or are they about issues that were or have become minor? Does the mover need this disclosure to proceed and would a court be hampered in adjudicating without it?
- Was there and is there a realistic possibility of obtaining this disclosure?
- What is the cost of the disclosure relative to the overall quantum of money at risk?
- Is the disclosure available to the seeker?
- Given the advances in the information in the case, has the request for missing disclosure become overreaching?
- Were the orders (or order) concerning the disclosure sufficiently clear that the party ordered to provide the information would understand what was being sought?
- Were the time-frames for obtaining the disclosure reasonable?
- Did the seeker of the disclosure continue to pursue the disclosure and enforce the order(s)?
- Were the disclosure orders (or order) so onerous that a party could not reasonably locate and disclose the volume of material requested?
- Is there a lesser remedy that would suffice? Would it be reasonable to provide that information not disclosed could not be used at trial?
- Has the seeker of disclosure discharged the onus of the burden of proof in the motion?
Despite several orders for disclosure and for maintenance of an insurance policy between July 2003 and August 2011, the Respondent failed to produce financial records, tax returns, and documents regarding a numbered company and property. The court held that these documents were essential to the Applicant’s claim for spousal and child support, and that documents could have been obtained through various channels available to the Respondent.
Justice Rogers noted that 21 undertakings from an August 2009 questioning of the Respondent had not been completed; many of these would have helped the Applicant determine the appropriate amounts of income for support purposes. Further, the incomplete undertakings included production of the aforementioned life insurance policy with proof that the Applicant had been named as an irrevocable beneficiary.
To resolve the injustice experienced by the Mrs. Grenier, the court struck the husband’s pleadings, allowing Mrs. Grenier to proceed with an uncontested hearing. The court once again ordered the Respondent to obtain a life insurance policy for the benefit of the Applicant. Justice Rogers noted:
Not requiring the respondent to disclose his documents that go to the heart of the applicant’s case would be extraordinarily unfair to the applicant. She is entitled to this disclosure and needs it to conduct a trial.
It is rather unfortunate for the Respondent that none of the previous orders for disclosure motivated him to cooperate. Although the striking of pleadings is an extreme remedy, it was warranted in this case. A nine year history of non-compliance requires a remedy equally as shocking.