The plaintiff brought an order to strike out the defendant's
statement of defence. The plaintiff alleged that the defendant
continually failed to provide full discovery of documents.
Although the defendant had disclosed a large volume of
documents, the plaintiff claimed the need for discovery regarding
other critical documentary evidence which had not been
The plaintiff is a property management and real estate services
company that alleges it was retained by the defendant,
Mercedes-Benz Canada Inc., to assist in the acquisition of a
property for an auto dealership.
In its statement of defence, the defendant denies the existence
of any agreement with the plaintiff and denies that it received any
benefit as a result of the plaintiff's efforts.
In strict compliance with the Rules of Court, the
plaintiff demanded the discovery of documents identifying six
specific categories of documents that the plaintiff considered
relevant. These included all communication in any form between the
parties during the relevant period as well as the defendant's
internal communication and meeting records relating to the dealings
with the plaintiff and the property in question.
Following motions which resulted in two supplementary list of
documents, the plaintiff determined through a former employee of
the defendant that additional relevant documents (minutes, emails,
reports) did exist but had not yet been disclosed. As a result, the
plaintiff brought a motion under Rule 2 of the Rules of
Court to have the defendant's appearance or statement of
defence struck out. The plaintiff claimed that even if all relevant
documents had been disclosed, the disclosure would be too late
because the plaintiff was already prejudiced by having to proceed
with an examination for discovery when it did not have all the
The court stated that striking out the statement of defence is a
"draconian remedy only to be invoked in the most egregious of
cases because it deprives the litigants of a trial on the
The court accepted that the plaintiff had thus far been
prejudiced by having to conduct its own examination for discovery
without the benefit of full document production. However, the
court balanced the prejudice to the plaintiff, with the
prejudice to the defendant that would arise if denied the
opportunity to advance a defence.
As a result, the court made the following orders:
1. The plaintiff is entitled to cross-examine the defendant on
all matters relevant to document production. Costs of examination
will be borne by the defendant.
2. If further documents are identified, the discovery by the
plaintiff may be adjourned until the documents have been
3. As a result of the above orders, any costs related to further
examinations will be borne by the defendant.
1) an abridgement of the notice period required to bring the
2) disclosure of information from the two respondents (Coast
Publishing Limited and Google Inc.) which could lead to the
identity of the anonymous internet users who authored and published
comments which the applicants allege as defamatory.
Both respondents stated that they would not appear in opposition
to the application.
Under Rule 14.12(1) the court stated that "a judge
may order a person to deliver a copy of a relevant or relevant
electronic information to a party or at the trial or hearing of a
The court stated that the Rules are flexible enough to
require the production of information in the pre commencement stage
because the applicants need the information in order to identify
the individual(s) who committed the alleged defamations. Therefore,
the order entails a process to identify the individuals because the
applicants must know who to start an action against before they can
actually commence with the action.
The court granted the order and stated that "the court does
not condone the conduct of anonymous internet users who make
defamatory comments and they like other people have to be
accountable for their actions."
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