Seriously, you need to participate

What happens when one side to a lawsuit refuses to obey the rules governing the legal process and sets their own terms for their participation?

A maxim of law is that there is no right without a corresponding remedy for the breach of that right. The civil litigation system guarantees various rights to a party to a lawsuit regarding their participation in the lawsuit and how it will proceed.

With this maxim in mind, what remedy exists when the other party to the lawsuit breaches these rights?

Civil litigation

In Ferguson v Yorkwest Plumbing Supply Inc., 2022 ONSC 4792, the Ontario Superior Court of Justice showed the extent of the remedy available to a court when addressing an extreme case of misconduct in the course of the civil litigation process.  

The legal system is the process that society has chosen for dispute resolution. Civil litigation is the application of this process, by which disputes are addressed and resolved. This system only works when all parties to a dispute agree to play by the rules governing civil litigation.

In a perfect world, all parties would follow the rules without being reminded to do so, and their case would be decided on the merits. This, however, is not a perfect world, and parties to litigation frequently do not play by the rules, oftentimes to the detriment of themselves and the system itself.

Over the past few months we have written about the importance of taking an active role in the litigation process and the need to follow through with an agreed-upon settlement.

Sometimes, one party to litigation takes steps to make it seem as though they are participating, but in reality, is doing their best to delay, drive up costs and frustrate the other side, hoping that they’ll give up. In Ferguson, the court provided an example of what happens when one party engages in this type of behaviour.

Spoiler alert: the outcome is not ideal for the non-compliant party.

Wrongful dismissal

In Ferguson, a wrongful dismissal, the plaintiff made four attempts to schedule examinations for discovery over a five-and-a-half month period. None of the examinations proceeded, as the defendant refused to attend.

The plaintiff scheduled a case conference before Justice Morgan, which proceeded in January 2022. At this conference, Morgan noted that the defendant had been “delaying discoveries”, and advised that if there was a further instance of non-attendance, the plaintiff should seek whatever remedy was available to it under the Rules of Civil Procedure. Morgan ordered that the parties schedule discoveries, and that these should occur no later than Feb. 28, 2022.

The parties then entered into discussions to schedule examinations. The defendant suggested proceeding on Feb. 28, 2022. The plaintiff agreed and served a further Notice of Examination, advising that it intended to examine the defendant’s representative starting at 2 pm on Feb. 28, 2022 (that is, the plaintiff’s examinations would proceed after the defendant’s).

The defendant objected to the plaintiff’s proposed order and stated that the plaintiff should examine the defendant’s representative first — after which, the defendant advised, it would determine if it wanted to examine the plaintiff. The defendant also suggested rescheduling examinations to Feb. 23, 2022.

The plaintiff appears to have ceased discussions with the defendant at this point and brought a motion pursuant to Rule 34.15(1)(b), requesting the court strike the defendant’s Statement of Defence for failure to appear at a scheduled examination for discovery. In the absence of a Statement of Defence, the plaintiff’s matter would proceed as an undefended action and into a default judgment.

In granting the requested relief, associate Justice Jolley noted that the plaintiff’s claim was for a wrongful dismissal in August 2018 and under Simplified Procedure, which, in theory, should have made it proceed at a faster rate. The court described the defendant’s actions as “particularly inappropriate in a small simplified rules case like this one”, and, citing Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), that the law should ensure the protection of vulnerable employees by encouraging proper conduct on the part of their employer.

Takeaways

Striking a defence is an extreme and serious response to misconduct, and has been rarely awarded. This is a unique situation where a party’s substantive rights were impacted by its refusal to follow procedure. The court’s decision to award this remedy in this case should act as a clear indication that conduct of this nature will not be tolerated. 

The Rules of Civil Procedure are in place to ensure that litigation proceeds in a fair and predictable manner. Where one party repeatedly opts to flout the rules by attempting to dictate the course of litigation on their own terms, it not only impacts the interest of the opposing party, it also causes the whole system to become less reliable. 

Regrettably, some litigants choose to ignore this and to instead proceed via procedural gamesmanship, which does little but create delay for the resolution of the matter and increase all parties’ costs. In a wrongful dismissal matter, this is likely to negatively impact the plaintiff to a much larger extent than the defendant, due to the power imbalance between them and the defendant’s access to a greater amount of resources.

Decisions like Ferguson demonstrate the court’s unwillingness to permit behaviour like this to proceed. Indeed, Ferguson should stand as a warning of the consequences for a party who attempts to avoid addressing the substantive merits of a matter by improperly applying the Rules.