Canada Judgment

Court of Appeal for Ontario

Way v. Schembri

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Source document

01

Holding and result

The motion judge properly exercised his discretion in striking the appellants' statement of defence and dismissing their claim for failure to comply with documentary disclosure obligations; the Court of Appeal found no error in that exercise of discretion, concluded late production of documents would not have altered the result, and therefore declined to interfere.

Court disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to respondents on a partial indemnity scale fixed at $30,000 inclusive of disbursements and HST

02

Material facts

Parties

Al Way

Plaintiff (respondent) Counsel: Andrew Winton, Philip Underwood

Kingsley Financial Inc.

Plaintiff (respondent) Counsel: Andrew Winton, Philip Underwood

Triumph Financial Holdings Inc.

Plaintiff (respondent) Counsel: Andrew Winton, Philip Underwood

Gordon Schembri

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

Schembri Financial Limited

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

41 Columbia Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

King & Columbia Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

69 Columbia St. Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

5 Rittenhouse Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

The Block Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

The Block I Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

The Block II Inc.

Respondent (appellant) Counsel: Jordan Goldblatt, Emily Vaillancourt, Catherine Allen

Amounts and remedies

  • Costs Awarded: CAD 30,000

03

Procedural history

  1. Posture

    Civil Appeal / Oral Hearing at Court of Appeal From Superior Court Motion Judge Order Striking Pleadings and Dismissing Claim

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellants argued the motion judge erred in striking the statement of defence and dismissing the claim and that subsequent production of documents undermines the basis for the sanction.
Respondent
Respondents argued the motion judge properly exercised his discretion given persistent non‑compliance with disclosure obligations, that the judge was well‑positioned to decide the relief having been appointed to hear all motions, and that late production was too little, too late.

05

Court’s reasoning

  1. 01

    Court of Appeal jurisprudence (principle articulated in reasons)

    A trial judge's discretionary procedural orders are entitled to significant appellate deference and will not be overturned absent palpable and overriding error.

  2. 02

    Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r.37.15

    Rule 37.15 of the Rules of Civil Procedure permits appointment of a judge to hear all motions in related matters and informs the judge's positioning to determine appropriate relief.

  3. 03

    Civil procedure principles on disclosure and sanctions (as applied by motion judge)

    Sanctions, including striking pleadings and dismissing claims, are available for non‑compliance with documentary disclosure obligations where warranted by the conduct and prejudice.

06

Ratio, limits and disposition

Ratio decidendi

The motion judge properly exercised his discretion in striking the appellants' statement of defence and dismissing their claim for failure to comply with documentary disclosure obligations; the Court of Appeal found no error in that exercise of discretion, concluded late production of documents would not have altered the result, and therefore declined to interfere.

Obiter and limits

  • The motion judge was particularly well‑positioned to assess the appropriate relief because he had been appointed under r.37.15 to hear all motions in these matters.
  • Late production of documents, occurring only after the sanction, was characterized as too little, too late and insufficient to justify appellate intervention.

Court disposition

Appeal dismissed

  • Appeal dismissed
  • Costs to respondents on a partial indemnity scale fixed at $30,000 inclusive of disbursements and HST

Source and reliance status

Court of Appeal for Ontario · 11 December 2025

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Judgment text

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Source document

Court of Appeal for Ontario

Judgment· 11 December 2025

2025 ONCA 863

Way v. Schembri Collection Decisions of the Court of Appeal Date 2025-12-11 Neutral citation 2025 ONCA 863 Docket numbers COA-25-CV-0396 Judges Simmons, Janet M.; Miller, Bradley; Wilson, Darla A. Subject Civil Decision Content

COURT OF APPEAL FOR ONTARIO CITATION: Way v. Schembri, 2025 ONCA 863 DATE: 20251211 DOCKET: COA-25-CV-0396 Simmons, Miller and Wilson JJ.A.

BETWEEN Al Way, Kingsley Financial Inc. and Triumph Financial Holdings Inc. Plaintiffs (Respondents) and Gordon Schembri, Schembri Financial Limited, 41 Columbia Inc., King & Columbia Inc., 69 Columbia St. Inc., 5 Rittenhouse Inc., The Block Inc., The Block I Inc. And The Block II Inc. Respondents (Appellants) Jordan Goldblatt, Emily Vaillancourt, and Catherine Allen for the appellants Andrew Winton and Philip Underwood for the respondents Heard and rendered orally: December 8, 2025 On appeal from the order of Justice Michael R. Gibson of the Superior Court of Justice, dated February 11, 2025, with reasons reported at 2025 ONSC 946.

REASONS FOR DECISION [1] The motion judge gave thorough reasons for his order striking the appellants’ statement of defence in action CV-457-12 and dismissing their claim in action CV-42-11 for failure to comply with documentary disclosure obligations. His order is discretionary and entitled to significant deference from this court. [2] We see no error which would justify appellate interference. In this regard, we note that the motion judge had been appointed under rule 37.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to hear all motions in these matters and was therefore well-positioned to determine the relief that should be granted. Although the appellants may now have produced the necessary documents, in our view, this is too little, too late, and we are not persuaded it would have affected the motion judge’s decision. [3] The appeal is therefore dismissed. [4] Costs of the appeal are to the respondents on a partial indemnity scale fixed in the amount of $30,000 inclusive of disbursements and HST. “Janet Simmons J.A.” “B.W. Miller J.A.” “D.A. Wilson J.A.”

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r.37.15

Legislation

Legislation referenced in the available case record.

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