Striking pleading appropriate in the face of repeated non-compliance

Grewal v. Nijjer,  2011 BCCA 505  deals with striking pleadings in the context of (1) deliberate and persistent breaches of the Rules of Court and (2) a court order combined with a demonstrated intention not to comply.  In such an extreme case the striking of pleadings was held to be proper.  The Court writes:

 

[14]         Striking pleadings is a severe remedy and the power to apply it should be measured and proportionate.  As Madam Justice Southin said in Homer Estate v. Eurocopter S.A., 2003 BCCA 229, 12 B.C.L.R. (4th) 321 at para. 4, it is “a Draconian remedy only to be invoked in the most egregious of cases because it deprives the litigants of a trial on the evidence.”

 

[15]         Likewise, it was said in Hauwelling v. Dowak Industries Ltd., [1980] B.C.J. No. 1276 (C.A.) at para. 10, that the remedy “should only be done as a last resort.”

 

[16]         While it was open to the judge to apply a less drastic remedy, given his findings that the breach of the order was deliberate and unexplained, and that the Nijjers had no intention of complying with the order, striking out the pleadings was reasonably within the range of his discretion.  Without any prospect of compliance, it cannot be said, as counsel for the Nijjers submitted, that Mr. Grewal was not seriously prejudiced by the Nijjers’ conduct.