Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff sought to strike the defendant's statement of defence for late filing despite no default having been noted.

• Multiple judicial warnings emphasized that a two-week delay in filing a defence is not grounds to nullify a statement of defence.

• The plaintiff’s persistent pursuit of an unwarranted motion resulted in significant delay in the underlying disability claim.

• Judges repeatedly ruled that the proposed motion had no merit and would not succeed, rendering further steps unnecessary.

• Plaintiff’s counsel offered no evidence that default was requested before the defence was served.

• The court imposed substantial indemnity costs against the plaintiff for unreasonable and sanctionable litigation conduct.

Background and procedural history
Daynah Allen, the plaintiff, filed a civil claim for over $1.2 million in long-term disability benefits against Sun Life Assurance Company. The defendant received the statement of claim on February 1, 2023, and on the same day, filed a Notice of Intent to Defend, along with a request for an indulgence regarding the deadline to serve the statement of defence. The defence was ultimately filed on March 8, 2023.

Despite this, the plaintiff later attempted to note Sun Life in default and brought a motion to strike the defence on grounds of late filing. However, there was no evidence the plaintiff had taken timely steps to note the defendant in default before the defence was served. A requisition to note in default was filed over a month later, on April 11, 2023, by which point the defence had already been accepted by the court.

Judicial warnings and resistance from plaintiff
The plaintiff was repeatedly advised by three different judges that the motion to strike the defence was procedurally baseless and would not succeed. Associate Justice Brott clearly warned the plaintiff that proceeding would be a misuse of court time and client resources. Justice Dow declined to schedule the motion at a civil practice court appearance in August 2024, citing a lack of merit and suggesting that it would only cause further delays.

Despite these warnings, the plaintiff persisted in seeking to schedule the motion. The presiding judge, Justice Merritt, reiterated that the motion was bound to fail. He confirmed that a minor procedural irregularity like a two-week filing delay, especially in the absence of a default being noted, could not justify striking a statement of defence. Further, under Rule 2.01(1) of the Rules of Civil Procedure, procedural irregularities do not nullify pleadings unless it is necessary in the interests of justice.

Sanctions and costs award
Justice Merritt found that the plaintiff’s conduct in pursuing the motion was unreasonable and worthy of sanction. Despite ample judicial guidance and warnings about potential costs, the plaintiff continued with an unmeritorious and obstructive course of action that stalled the underlying litigation. The court emphasized the importance of advancing civil proceedings in a just, expeditious, and cost-effective manner as required under Rule 1.04(1).

As a result, the court awarded substantial indemnity costs against the plaintiff in the amount of $7,500, citing the plaintiff’s persistent and unreasonable conduct as exceptional and deserving of sanction. The court acknowledged the plaintiff’s financial hardship and did not order immediate payment, but the cost award stands in any event of the cause.

Conclusion
This case highlights the court’s commitment to procedural fairness and the efficient administration of justice. Frivolous motions based on procedural technicalities—especially when they lack merit and are pursued in the face of judicial opposition—will not only fail but may also expose the moving party to elevated costs. The underlying disability claim remains, but its progress has been hindered by needless procedural disputes.