Executive Summary: Key Legal and Evidentiary Issues

• Persistent non-compliance by several defendants with multiple court orders for costs and affidavits of documents, undermining the progress of the action.
• Proportionality and discretion in striking out defences as a remedy where defaults are deliberate, repeated and materially prejudice the plaintiff’s ability to move the case forward.
• Corporate representation issue for Daimyo Real Estate Corporation, which failed to retain counsel or seek leave to be represented by a non-lawyer contrary to an earlier order.
• Credibility concerns arising from defendants’ unproven claims of financial hardship and a non-existent costs award allegedly payable by the plaintiff.
• Impact of long-outstanding, unpaid costs awards and ignored discovery obligations on the court’s ability to administer justice fairly and efficiently.
• Differentiated treatment of defendants based on their individual compliance, with striking orders made against some but not all defendants.

Background and parties

This case arises from a civil action brought by the plaintiff, Zoubida Benabed, against multiple individual defendants and a corporate defendant, Daimyo Real Estate Corporation. The individual defendants include Christian Levasseur, Nantu Kumar Ghosh, Tinku Ghosh, Suabe Kasam and others. The decision of Associate Justice Jolley deals with a procedural motion in the Ontario Superior Court of Justice focused on ongoing non-compliance with prior court orders, rather than the merits of the underlying claim. The plaintiff’s central complaint at this stage is that her lawsuit has been stalled because several defendants have systematically ignored court-ordered obligations, particularly costs awards and documentary disclosure. As a result, she brings a motion to strike the defences of the non-compliant defendants so the litigation can move forward.

Procedural history and outstanding obligations

Over the course of prior attendances before different judges, a series of costs awards and procedural orders were made against several defendants. These included significant costs awards against Nantu Ghosh by Dow J. and the Divisional Court, as well as smaller but still binding costs orders against Christian Levasseur and Tinku Ghosh. In addition, Associate Justice Eckler made an order on 15 October 2025 setting firm deadlines for key procedural steps. Among other things, Daimyo Real Estate Corporation and Levasseur agreed through counsel (appearing for that motion only) to deliver affidavits of documents by 31 December 2025. The same order extended deadlines for payment of previously awarded costs to 1 December 2025 for defendants such as Nantu and Tinku. Despite these accommodations, most of the affected defendants failed to comply with the extended deadlines. The plaintiff, therefore, remained unable to obtain core disclosure or collect the costs already ordered in her favour, leaving the action stuck at the discovery stage two years after commencement.

Conduct of Daimyo Real Estate Corporation

Daimyo Real Estate Corporation, whose sole director is Christian Levasseur, features prominently in the motion as a defaulting corporate defendant. Because a corporation cannot ordinarily represent itself through a non-lawyer in court, Daimyo had previously agreed, through counsel, that it would either retain a lawyer or seek an order permitting it to be represented by a non-lawyer. It also agreed to serve its affidavit of documents by the end of 2025. Daimyo did neither. It failed to bring the promised motion about representation, did not retain counsel on an ongoing basis, and did not provide its affidavit of documents, all in clear breach of Associate Justice Eckler’s order. Daimyo also did not file any responding materials for this motion. Levasseur simply suggested that the corporation be given more time to comply, but no concrete steps, timelines or explanations were provided to support that request.

Conduct of Christian Levasseur

Individually, Levasseur was ordered on 7 February 2025 to pay the plaintiff $2,000 in costs. Even after an extension to 1 December 2025, he did not pay those costs and remained in default at the time of the motion. He also failed to honour his agreement and the resulting order of 15 October 2025 requiring him to deliver an affidavit of documents by 31 December 2025. Levasseur filed no written responding materials but appeared on the motion and argued that he should be allowed to pay the outstanding costs over time, alleging financial difficulty and asserting that the plaintiff “owed” him $20,000 in costs. The court rejected this submission because there was no existing order in his favour for that amount, and Levasseur offered no evidence of his financial situation. The court viewed his suggestion that there was a costs order in his favour as untrue and treated it as an aggravating factor, especially in light of his earlier representation to Associate Justice Eckler that he “intended to take steps” to pay the outstanding costs, which he still had not done.

Conduct of Nantu Kumar Ghosh

Nantu’s situation involved multiple, substantial unpaid costs awards. Dow J. ordered him on 12 September 2024 to pay $24,272.78 forthwith. Later, the Divisional Court ordered him to pay an additional $2,000 within 30 days on 7 February 2025, and a further $1,900 on 27 June 2025. None of these costs awards had been paid, even partially, despite the passage of many months—27 months for the earliest order and at least 7 months for the latest. Associate Justice Eckler had already extended the time for Nantu to pay all of these amounts to 1 December 2025, based on counsel’s representation that he intended to take steps to pay the outstanding awards. However, Nantu made no payments by that extended deadline. He filed no written materials for this motion but appeared and argued for more time, claiming that the plaintiff rejected his proposal for payment in instalments and asserting that he could not afford to pay. The court concluded that any inability-to-pay arguments should have been made when the earlier courts set the costs awards and that this motion was not an appeal of those orders. Given the extensive delay and total non-payment, the court found no credible basis to assume that another extension would change Nantu’s approach.

Conduct of Tinku Ghosh

Tinku was subject to a smaller costs order: on 7 February 2025, the Divisional Court ordered him to pay the plaintiff $1,000 in costs within 30 days. He did not pay by the original deadline, and Associate Justice Eckler later extended the time to 1 December 2025. Tinku again failed to pay by the extended deadline. However, unlike the other defaulting defendants, Tinku ultimately paid this $1,000 costs award on 10 February 2026, the day before this motion was heard. He had also complied with the directive to serve his affidavit of documents by submitting it on 31 October 2025. For the present motion, Tinku signed into the virtual hearing but did not turn on his camera or microphone and left the proceeding before it was his turn to speak, and he filed no written responding materials. Despite these shortcomings in participation, the court focused on his substantive compliance with his obligations: by the time of the motion, he had both served his affidavit of documents and paid the costs order, albeit very late.

Conduct of Suabe Kasam

Kasam’s engagement with the litigation was minimal. He did not attend the October 2025 motion before Associate Justice Eckler, nor did he attend this motion. On 15 October 2025, he had been ordered to serve his affidavit of documents by 31 December 2025, but he failed to comply. The only step he appears to have taken in the action was to file a brief letter, which the plaintiff generously treated as a statement of defence. Kasam filed no responding materials and gave no explanation for his non-compliance or absence at the key attendances. The court concluded that he had effectively shown no interest in the litigation and that there was no reason to believe a lesser sanction would prompt compliance.

Legal framework for striking out defences

In deciding whether to strike a party’s pleading, the court applied the discretionary framework outlined by the Court of Appeal in Falcon Lumber Limited v 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310. Under this approach, the court examines several common-sense factors: whether the failure to comply is deliberate or inadvertent; whether the default is clear and unequivocal; whether there is a reasonable explanation and a credible commitment to quickly cure the default; whether the default is material or minimal; whether the party remains in default at the time of the motion; and whether striking the pleading is a proportionate response in light of the impact on the ability to do justice. Associate Justice Jolley emphasized that the failures in this case were not minor technical breaches. Rather, they were ongoing, serious defaults—especially the refusal to pay long-outstanding costs and the failure to deliver affidavits of documents agreed to in previous orders. The judge also referred to prior authority stressing that courts must ensure compliance with their orders to protect the integrity of the justice system and avoid unfairness to complying parties when others ignore orders with impunity.

Application of the test to each defendant

Applying this test, the court concluded that the defences of Levasseur, Daimyo, Nantu and Kasam should be struck, but that Tinku’s defence should be preserved. For Levasseur and Daimyo, the court found that the key failures—non-payment of costs and non-delivery of affidavits of documents—were deliberate, long-standing and unjustified. The judge rejected Levasseur’s argument that the defaults were “minor,” noting that he had ignored a relatively modest costs order for more than a year and falsely claimed that there was a larger costs order in his favour. The failure of both Levasseur and Daimyo to deliver affidavits of documents was particularly serious because it completely stonewalled the plaintiff’s ability to move the litigation forward. For Nantu, the court was influenced by the magnitude and age of the unpaid costs awards, combined with the prior extension already granted. His request for more time was seen as a repetition of failed approaches rather than a credible new plan. Given his chronic non-payment and the absence of concrete steps, the court had no confidence that a further indulgence would lead to compliance. As for Kasam, his near-total disengagement from the proceedings—no attendance at key motions, no affidavit of documents, no explanation—led the court to conclude that only the striking of his defence would reflect the seriousness of his defaults and protect the plaintiff’s right to proceed.

Different outcome for Tinku Ghosh

By contrast, the court declined to strike Tinku’s defence. The key distinction was that, by the hearing date, Tinku had met both of his main obligations arising from earlier orders: he served his affidavit of documents on time in October 2025 and ultimately paid the $1,000 costs order on 10 February 2026. While his payment was significantly delayed and only made on the eve of the motion, the court accepted that there was no longer a live default justifying the extreme remedy of striking his defence. The judge implicitly recognized that striking defences is a severe sanction reserved for persistent and ongoing non-compliance, and Tinku’s late but eventual compliance took him out of that category.

Costs of the motion and overall outcome

On the issue of costs of the motion itself, the plaintiff sought partial indemnity costs of $2,969.64. The court found this amount more than reasonable in light of the work required to compile a full record of the defendants’ numerous breaches and to prepare a helpful factum. The defendants argued they should not have to pay costs because the plaintiff did not upload a separate costs outline, but they made no substantive challenge to the quantum claimed. The court noted that while the plaintiff should have uploaded the outline, the defendants had clear notice from the notice of motion that costs were being sought, so there was no unfair surprise. In the result, Associate Justice Jolley ordered that the statements of defence of Christian Levasseur, Daimyo Real Estate Corporation, Nantu Kumar Ghosh and Suabe Kasam be struck. Those four defendants were ordered, on a joint and several basis, to pay the plaintiff partial indemnity costs for the motion in the amount of $2,969.64, payable forthwith. Tinku Ghosh’s defence was not struck because he had satisfied his outstanding obligations by the time of the hearing. Accordingly, the successful party on this motion is the plaintiff, Zoubida Benabed, and the total monetary amount ordered in her favour in this decision is $2,969.64 in costs only; no damages on the underlying claim were quantified in this ruling.