Jean Carl Denis avocat, barrister & solicitor, CMC c. Mouvement Desjardins

Jean Carl Denis avocat, barrister & solicitor, CMC c. Mouvement Desjardins

The appeal was allowed because the motion judge made palpable and overriding errors in assessing the evidence that the appellant had given timely notice of contamination and of serious, explained obstacles to disclosure; striking the declaration was a disproportionate remedy in the absence of demonstrated prejudice...

Source-derived case information.

Citation
C44392
Parties
Appellant: Jean Carl Denis avocat, barrister & solicitor, CMC; Respondent: Mouvement Desjardins; Respondent: Fédération des caisses desjardins du Québec (Mouvement des caisses Desjardins); Respondent: Desjardins Groupe d’Assurances Générales Inc.; Respondent: La Fédération des caisses populaires de l’Ontario Inc.; Respondent: Caisse populaire Rideau d’Ottawa Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
7 November 2006
Procedural Posture
Civil / Appeal From Motion Judge Order (superior Court)
Outcome
Appeal allowed; decision of the motion judge set aside.
Legal Topics
Striking Pleadings, Non Compliance With Court Order, Affidavit of Documents, Proportionality of Remedies, Costs
Source Language
fr
Civil Civil Procedure Discovery Appeal Striking Pleadings Non Compliance With Court Order Affidavit of Documents Proportionality of Remedies +1 more

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Parties

Jean Carl Denis avocat, barrister & solicitor, CMC

Appellant

Mouvement Desjardins

Respondent

Fédération des caisses desjardins du Québec (Mouvement des caisses Desjardins)

Respondent

Desjardins Groupe d’Assurances Générales Inc.

Respondent

La Fédération des caisses populaires de l’Ontario Inc.

Respondent

Caisse populaire Rideau d’Ottawa Inc.

Respondent

Procedural Posture

Civil / Appeal From Motion Judge Order (superior Court)

  1. 1 Whether the motion judge properly struck the statement of claim for failure to comply with a prothonotary's order
  2. 2 Whether the motion judge made palpable and overriding errors in assessing evidence concerning notice of contamination and obstacles to disclosure
  3. 3 Whether striking the declaration was a proportionate remedy and whether lesser remedies were available

Ratio Decidendi

The appeal was allowed because the motion judge made palpable and overriding errors in assessing the evidence that the appellant had given timely notice of contamination and of serious, explained obstacles to disclosure; striking the declaration was a disproportionate remedy in the absence of demonstrated prejudice and less onerous alternatives; accordingly the motion judge's order was set aside and tailored relief was granted (six months to serve an affidavit of documents with limits on use of undisclosed documents).

Court Disposition

Appeal allowed; decision of the motion judge set aside.

Orders

  • Appellant granted six months to serve an affidavit of documents including any contaminated documents he obtains within that period.
  • Trial shall not be set within the six-month period.