Giving landlord one last chance would have been collateral attack on prior order

SETTING ASIDE
Giving landlord one last chance would have been collateral attack on prior order
Motion by landlord for order setting aside order striking out statement of defence and counterclaim with prejudice. Landlord had allegedly committed to completing numerous substantial repairs and improvements for tenant. Tenant alleged much work was either not done or was done late or poorly. Tenant also alleged landlord interfered with quiet enjoyment of premises and improperly tried to evict tenant. Tenant commenced action against landlord in March 2009 for damages and injunctive relief for breach of contract. Landlord commenced counterclaim for declaration that written lease was invalid and for damages for, inter alia, wrongful occupation. During examination for discovery in December 2011, landlord provided undertaking to produce relevant documents. Landlord chose not to respond to motion successfully brought by tenant in March 2012 for order requiring landlord to fulfil undertaking. Order permitted tenant to bring ex parte motion for order striking out statement of defence and counterclaim if landlord failed to comply. Landlord failed to comply so tenant successfully brought ex parte motion in April 2012 for order striking out statement of defence and counterclaim with prejudice. Motion dismissed. Landlord failed to establish basis for exercise of discretion in its favour. Since landlord claimed not to have had any notice of motion for order striking out statement of defence and counterclaim, landlord could not rely on Rule 37.14(1)(b) of Rules of Civil Procedure (Ont.). Rule 37.14(1)(b) only applied to accident, mistake, or insufficient notice rather than lack of any notice. Lack of notice fell within Rule 37.14(1)(a). Fact that order requiring landlord to fulfil undertaking permitted ex parte motion did not preclude landlord from pursuing relief under Rule 37.14(1)(a). Rule 37.14(1)(a) was designed to remedy possible injustice resulting from temporary suspension of normal adversarial process. No such injustice was apparent in this case. If landlord had appeared at ex parte motion, landlord’s evidence would have only confirmed non-compliance without good excuse. Giving landlord one last chance would have been collateral attack on prior order permitting ex parte motion. Landlord had deliberately chosen not to appear for motion at which that order had been made and had never appealed. Landlord had repeatedly demonstrated reluctance to address this litigation in prompt and proper way and had to suffer consequences.
Wayne v. 1690416 Ontario Inc. (Sep. 18, 2012, Ont. S.C.J., Leach J., File No. 61476) 221 A.C.W.S. (3d) 449.