Compliance: an intrinsic value in litigation

By: Pilar Munoz and Fahad Warraich

The decision of the Ontario Superior Court of Justice in LaFlamme v. Meikle and Vigliotti, 2025 ONSC 2815, affirms that litigants, whether they are represented by counsel or not, are required to comply with their obligations under the Rules of Civil Procedure. Parties who disengage from their obligations under the Rules may face significant consequences, as was the case in LaFlamme, where the Defendants’ Statement of Defence was struck for sustained non-compliance with the Rules and multiple Court orders.

This Action arose from a failed real estate transaction. The Defendants were initially represented by counsel, and delivered a Statement of Defence in May 2023, which marked the last meaningful step taken by the Defendants in litigation. Although they were represented by counsel at the time, the Defendants failed to serve their affidavit of documents by the agreed deadline of November 30, 2023. Following Defendants’ counsel getting off the record, the Defendants were served with a Court Order requiring that they either appoint a new lawyer or serve a Notice of Intention to Act in Person. They did neither. 

As a result, a case conference was convened in September 2024, at which point a timetable was established for discovery. The Court also provided resources to assist self-represented litigants. Despite these accommodations, the Defendants took no steps to comply with the timetable.

The Plaintiffs thereafter sought an Order striking the Statement of Defence based on the Defendants’ noncompliance with the following:

a. Rule 3.04(4) – Failure to comply with a timetable

b. Rule 15.04(9) – Failure to comply with Rule 15.04(8) to appoint a new solicitor or serve a notice of intention to act in person where the litigant is served with an order removing their solicitor from the record;

c. Rule 30.08(2)(b) – Failure to serve an affidavit of documents in compliance with the Rules; and,

d. Rule 60.12(b) – Failure to comply with an interlocutory order.

Rule 3.04(4) – Failure to Comply with a Timetable

Rule 3.04(4) states:

If a party fails to comply with a timetable, a judge or associate judge may, on any other party’s motion,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s Defence; or

(c) make such other order as is just.

In his reasons, Associate Justice Kamal at paragraph 37 summarized that:

[37] In isolation, this failure may not be sufficient to strike a Statement of Defence; however, this breach must be viewed in the context of the Defendants’ failure to engage in the litigation as a whole and the significant delay in moving this matter forward since it was converted from an Application to an Action in May 2023 – at the instance of the Defendants.

Rule 15.04 (9) – Failure to Appoint Counsel

Rule 15.04 (8) and (9) state:

(8) A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record,

(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or

(b) serve a notice of intention to act in person under subrule 15.03 (3).  O. Reg. 575/07, s. 13 (3).

(9) If the client fails to comply with subrule (8),

(a) the court may dismiss the client’s proceeding or strike out his or her defence; and

(b) in an appeal,

(i) a judge of the appellate court may, on motion, dismiss the client’s appeal, or

(ii) the court hearing the appeal may deny the client the right to be heard.

His Honour’s reasons reflected on the essential role of communication through litigation at paragraph 61 and 62:

            [61] One of the purposes of Rule 15.04 and the obligations outlined therein assist the Court and parties to be clear on the method that counsel, parties and the Court may communicate with each other. Communication is a key component of the litigation process. The Rules facilitate communication between and counsel. If these are not complied with, communication becomes challenging. That hinders the litigation process overall and is contrary to the objective of the Rules.

            [62] Rule 15.04 and its obligations also facilitates access to justice and procedural fairness. Therefore, a breach of this Rule is not simply a technicality – it curtails the entire process and increases costs for the other parties.

Rule 30.08(2) (b) – Failure to Serve an Affidavit of Documents in Compliance with the Rules

Rule 30.08(2) (b) states as follows:

Failure to Serve Affidavit or Produce Document

(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may,

[…]

(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant

Associate Justice Kamal highlighted at paragraph 46 that:

 [46] In Falcon Lumber at paragraph 57, the Court of Appeal provided a summary of the principles intended to guide the exercise of the court’s discretion when striking a party’s defence for non-compliance with documentary disclosure and production obligations including the following “common sense factors”:

            i.    whether the party’s failure is deliberate or inadvertent;

            ii.    whether the failure is clear and unequivocal;

            iii.   whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly;

            iv.    whether the substance of the default is material or minimal;

            v.     the extent to which the party remains in default at the time of the request to

strike out its pleading; and the impact of the default on the ability of the court to do justice in the particular case.

Rule 60.12(b) – Failure to Comply with an Interlocutory Order.

Rule 60.12(b) provides that where a party failed to comply with an interlocutory Order, Court may strike out that party’s defence.

In this case, the Court held that Defendants’ failures were sustained, unexplained, and prejudicial to the Plaintiffs, who had been attempting for over a year to move the case forward. The Court found that the Defendants’ conduct resulted in significant delay and increased costs to the Plaintiffs and that the Defendants’ showed a complete disregard for their obligations as litigants under the Rules, and the legal system.

As a result, the Court struck the Defendants’ Statement of Defence.

The importance of a litigant’s compliance with his or her obligations is highlighted by Associate Justice Kamal, as follows:

 [2] The considerations in this motion are not just technicalities. It is important for parties to comply with the Rules because they provide a structured and fair framework for resolving disputes in the civil justice system. Adherence to these procedures ensures that cases are handled efficiently, fairly, transparency, and consistently within the civil litigation system.

 [3] The integrity of the legal system is undermined when the Court permits non-compliance because it can lead to delays and increased costs. If we permit it, we promote it. The Court cannot promote non-compliance with the Rules.

This decision underscores that litigants, whether represented or not, must comply with their obligations under the Rules. Parties are expected to serve their affidavits of documents automatically and comply with court-ordered timelines as a matter of course. The Court made clear that sustained non-compliance, especially when left unexplained and uncorrected, may warrant serious consequences, including striking out a party’s pleading. The justice system prioritizes the fair and timely resolution of disputes. As this decision makes plain, delays and a failure to engage meaningfully in litigation will not be tolerated.