“In Mullin v Sherlock, 2018 ONCA 1063, the Ontario Court of Appeal addressed when a court should grant relief under r. 1(8) in the face of incomplete disclosure. It established a decision-making framework when r. 1(8) remedies are sought (see paras. 44 to 49).
First, the judge must be satisfied that there has been non-compliance with the court order. Second, once satisfied, a judge may have recourse to alternative remedies in r. 1(8) and should consider the following factors:
a. The relevance of the non-disclosure, including its significance in hindering resolution of issues in dispute.
b. The context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
c. The extensiveness of existing disclosure;
d. The seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
e. Any other relevant factors.”
Meffe v. Meffe, 2023 ONSC 3195 (CanLII) at 24-25