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Dawson v. Wong

Clifton Dawson, plaintiff(s), and
Henry Wong, Berly Wong and Wendy Morley, defendant(s)

[1998] O.J. No. 4649
Court File No. 92-CQ-20153

Ontario Court of Justice (General Division)
Toronto, Ontario
Master Peterson

October 30, 1998.
(2 pp.)

Practice - Pleadings - Striking out pleadings - Grounds, noncompliance with discovery rules.

Motion by the plaintiff Dawson for an order striking out the statement of defence of the defendant Morley. Dawson was concerned that he would not obtain production and complete discovery in a timely manner.

HELD: Motion dismissed. Dawson's legitimate concerns were better served by ordering Morley to serve a better affidavit of documents within 14 days and to answer outstanding refusals and undertakings within 14 days. She was also ordered to re-attend for the completion of her discovery and to set the action down for trial by February 5.

H.A. Fancy, for the plaintiff.
T. D'Angela and M. Elkin, for the defendant, Morley.

  1. MASTER PETERSON (endorsement): After having reviewed Mr. Fancy's motion record and the case law referred to by him and considered his lengthy submissions; and notwithstanding the absence of evidence in a responding affidavit, I decline to strike out the defence of the defendant Wendy Morley. In the circumstances of this case I am of the view that the legitimate concerns of the plaintiff to obtain production and complete discovery in a timely and inexpensive manner can be better served by an order that the defendant Wendy Morley:

    1. serve a further and better affidavit of documents within 14 days;

    2. answer outstanding undertakings and refusals ordered to be answered within 14 days;

    3. re-attend for the completion of her discovery on a mutually agreeable date at her expense on or before December 4, 1998, provided that if an agreeable date can't be reached the re-attendance shall be on Wednesday, December 2, 1998

    4. The defendant Wendy Morley shall set this action down for trial on or before February 5, 1999

    5. Costs to the plaintiff fixed at $700.00 payable forthwith.


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