Executive Summary: Key Legal and Evidentiary Issues

• Whether a two-day late delivery of a detailed response to a demand for particulars justified striking the defendants’ statement of defence and counterclaim.
• The scope of the court’s discretion under Rules 1.04 and 3.02 to extend time and relieve against strict, technical non-compliance with a prior consent order.
• The significance of counsel’s personal and family circumstances, and prior delays, in assessing “tardiness” versus abuse of process.
• The extent of prejudice (or lack thereof) to the plaintiff where particulars were ultimately delivered in full, albeit two days late.
• The proper use of default judgment motions in light of the principle that civil actions should be decided on their merits rather than procedural missteps.
• Whether additional costs should be awarded when a party has technically breached a timetable but the court ultimately grants relief from the consequences of that breach.

Facts and procedural background

This case arises from a commercial dispute between Raymond Exterior Veneers Inc. as plaintiff and Exterior Walls Systems Limited, operating as Ontario Panelization, together with individual defendants Philip MacDonald, Robert B. MacDonald and Dan Boyd. The underlying merits of the commercial claim are not detailed in the endorsement, but the litigation has proceeded through the usual pleadings stage. A Statement of Claim was issued on 26 March 2024, and the defendants delivered a combined Statement of Defence and Counterclaim on 21 May 2024.

Shortly afterward, on 24 May 2024, counsel for the defendants received a Request to Inspect Documents and a Demand for Particulars directed at allegations in the defence and counterclaim. The defendants delayed in providing this response. Counsel for the defendants later explained that the delay was connected to both the birth of his child and the volume of his practice. By 13 December 2024, the plaintiff, frustrated by the lack of response, served a motion seeking an order compelling the delivery of the requested particulars and inspection.

Before that motion was heard, defence counsel consented to an order made by Associate Justice Perron. Under this “Perron Order,” the defendants undertook to deliver their response to the Request to Inspect Documents and Demand for Particulars by 7 April 2025. The order also provided a strong enforcement mechanism: if the response was not delivered by that date, the defendants’ Statement of Defence and Counterclaim would be struck. As a further consequence of the earlier delay, the defendants were ordered to pay the plaintiff costs in the amount of $6,883.22, which were in fact paid.

The defendants’ response was ultimately not delivered by the 7 April 2025 deadline. The endorsement explains that defence counsel was dealing with significant personal circumstances in early April 2025. His wife and infant son had fallen ill with the flu. At the same time, the family was moving residences to London, Ontario. After taking possession of the new home, they discovered rat feces and latent nests in the insulation, necessitating pest control intervention and forcing the family to seek alternative accommodation. Despite these disruptions, counsel was working on the detailed response on 7 April 2025 in an effort to meet the deadline but was called away from the office unexpectedly to assist the pest controller.

On the morning of 8 April 2025, defence counsel contacted plaintiff’s counsel, explained the circumstances and sought indulgence for a brief delay. Plaintiff’s counsel advised that he would seek instructions. Later that day, at 6:57 p.m. on 8 April 2025, the defendants’ response was delivered. For procedural purposes, that filing was effective as of 9 April 2025. On 9 April 2025, plaintiff’s counsel advised that he had instructions to move for default judgment on the basis that the response was not delivered within the strict terms of the Perron Order and that, by its own terms, the defendants’ Statement of Defence and Counterclaim had been automatically struck.

On 11 April 2025, the plaintiff brought a motion for default judgment in writing. The materials filed did not acknowledge that the defendants had, in fact, delivered their response two days late.

Motions before Justice Doyle

The matter came before Justice A. Doyle of the Ontario Superior Court of Justice. On 18 December 2025, the court heard two intertwined motions. First, the defendants moved for an order extending the time for delivery of their response under the Perron Order and relieving them of the automatic consequence that their Statement of Defence and Counterclaim had been struck. Second, the plaintiff pursued its motion for default judgment, seeking judgment based on the defendants’ non-compliance with the earlier consent timetable.

At the hearing, Justice Doyle granted the defendants’ motion and extended the time for delivery of the response retroactively, ultimately setting the effective compliance date at 10 April 2025. As a result, the court reinstated the defendants’ Statement of Defence and Counterclaim. The plaintiff’s motion for default judgment was dismissed as a consequence of this relief.

Parties’ positions

The plaintiff opposed any extension of time and relied on case law emphasizing the importance of compliance with court orders, particularly Rana v. Unifund Assurance Company (2016 ONSC 50). It argued that the defendants had a history of delay and that the non-compliance with the Perron Order was part of a “consistent and ongoing pattern of unreasonable conduct” in the litigation. In the plaintiff’s submission, other lawyers in defence counsel’s firm could have completed the response if the lawyer on record was overwhelmed or occupied with personal issues. The plaintiff suggested that proper time management and an internal tickler system would have avoided the breach, that there was no evidence of efforts made before the deadline, and that the consequences of the consent order—automatic striking of the pleading—should not lightly be undone.

The plaintiff also invoked Rule 60.12 of the Rules of Civil Procedure, which addresses remedies for non-compliance with court orders, urging the court to be vigilant about potential abuse of process. It contended that the defendants had “cavalierly ignored its obligations” and that mere costs would not adequately compensate for the prejudice caused by delay.

The defendants, by contrast, emphasized that there was a genuine and concrete intention to comply with the Perron Order on time, that counsel was actively working on the response on the deadline date, and that the ultimate delay was brief—the response was delivered only two days late. Defence counsel detailed the personal and family disruptions that arose at the critical time, including illness in the household and the unexpected pest contamination at the new residence. The defendants therefore framed the breach as technical and minor rather than as a deliberate flouting of the court’s authority.

Legal framework and principles

Justice Doyle grounded the analysis in the Ontario Rules of Civil Procedure. Rule 3.02 confers broad discretion on the court to extend or abridge any time prescribed by the rules or an order, “on such terms as are just.” Rule 1.04 requires that the Rules be construed to secure the “just, most expeditious, and least expensive determination of every civil proceeding on its merits.” These provisions underscore that the civil justice system is oriented towards fair adjudication of disputes, not the imposition of harsh sanctions for minor procedural lapses absent real prejudice or abuse.

The court also drew guidance from the Ontario Court of Appeal’s decision in Duffin v. NBY Enterprises Inc. (2010 ONCA 765), where an action had been dismissed because the defendant was two days late in paying a costs award. The Court of Appeal set aside the dismissal, stressing at paragraph 18 the importance of considering the overall justice of the case when dealing with modest delays. The appellate court highlighted several factors that Justice Doyle adopted: the absence of prejudice to the opposing party, the underlying purpose of the original order, the seriousness (or lack thereof) of the breach, and the broader principle that litigation should, where possible, be resolved on its merits rather than on procedural technicalities.

Applying these principles, Justice Doyle accepted that there had been prior time-management issues by defence counsel, including failure to respond promptly to the original May 2024 request for particulars and inspection. However, the judge distinguished those earlier difficulties from the specific delay at issue under the Perron Order. In the period leading up to 7 April 2025, there was undisputed evidence that counsel intended to comply and was working diligently on the response. The intervening family illness and unexpected home-related emergency were concrete and contemporaneous events, not vague or generalized excuses.

Assessment of prejudice, purpose of the order and seriousness of the breach

In evaluating whether to grant relief from the technical non-compliance, the court assessed the prejudice that would result from varying the Perron Order. Justice Doyle found that the plaintiff would suffer no prejudice from back-dating the effective compliance date and reinstating the defence and counterclaim. The full particulars and inspection response had been provided, albeit two days late, meaning that the litigation could proceed without additional delay attributable to the defendants. By contrast, the prejudice to the defendants would be severe if relief were denied: their defence and counterclaim would remain struck, effectively dismissing their side of the dispute without any hearing on the merits.

The judge further considered the purpose of the Perron Order. That order was designed to ensure that particulars and document inspection would occur in a timely fashion to allow the action to move forward. Once the defendants delivered the complete response, that purpose was substantially fulfilled. The order was not intended as a trap to trigger a disproportionate procedural penalty for a minimal delay that caused no real harm to the opposing party.

The seriousness of the breach was also carefully weighed. Justice Doyle characterized the breach as minor—“in practical terms one day late”—and technical in nature. In light of the short delay, the explanation offered, and the absence of demonstrable prejudice, the court concluded that this was the sort of non-compliance that the Rules’ remedial and discretionary provisions were designed to address.

Disposition and costs

Having considered the case law, the Rules of Civil Procedure and the specific facts, Justice Doyle found that the justice of the case warranted relieving the defendants from the technical effects of the Perron Order. The court extended the time for delivery of the response retroactively, fixing the effective date as 10 April 2025, and reinstated the defendants’ Statement of Defence and Counterclaim. As a direct consequence, the plaintiff’s motion for default judgment was dismissed.

On the question of costs, Justice Doyle declined to order any costs in connection with these motions. The judge recognized that the motion was necessitated by the defendants’ failure to comply with the timetable and acknowledged that there had been earlier tardiness in responding to legitimate requests for particulars and inspection, which had already led to the Perron Order and the prior costs award of $6,883.22. At the same time, the court held that the litigation should ultimately be decided on its substantive merits rather than on personal intervening circumstances affecting defence counsel. In that context, neither side was awarded costs of the present motion. The prior costs ordered by Associate Justice Perron remained a matter of record and had already been paid, but Justice Doyle made no new monetary order in either party’s favour.

In summary, the successful party on the motions decided in this endorsement is the defendants, who obtained reinstatement of their defence and counterclaim and defeated the plaintiff’s bid for default judgment. No additional damages or new costs were ordered in their favour, and beyond confirming the earlier Perron Order’s background costs of $6,883.22 (which had already been paid), the total amount of any ultimate monetary award in the underlying commercial dispute cannot be determined from this decision alone.