Ignoring one’s obligations in Supreme Court proceedings may be met with an application by the opposing side to strike one’s claim or defense. If you are the Plaintiff suing someone, this could mean your claim would be dismissed. If you are the Defendant, it could mean that the Plaintiff could obtain judgment against you without there being a trial upon the merits of the case. It is a Draconian remedy used sparingly, but it is used on occasion by the Court when dealing with litigants who fail to take timely and positive steps in civil proceedings pursuant to the Rules. In deciding an application to strike, the Court will consider the following factors:
(a) the order to strike is a Draconian measure which should be granted only in the most exceptional
(b) parties are entitled to a second chance before an order to strike;
(c) the punishment must be proportionate to the non-compliance;
(d) the availability of a lesser remedy which would cure the default and inspire confidence that the court’s
orders will be respected in the future; and
(e) reasonableness of the explanations offered for non-compliance.
Reasons for judgment were released in the matter of Chang v. Siew, 2014 BCSC 253 (http://www.courts.gov.bc.ca/jdb-txt/SC/14/02/2014BCSC0253cor1.htm) where the Court dealt with this very application. The case is a good summary of how the Court generally weighs the pros and cons of such applications. Needless to say, it is always prudent to stay above board and ensure that one’s obligations are fully met when bringing or defending proceedings in Supreme Court.
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