“In Van v. Palombi, 2017 ONSC 2492 (Div. Ct.), the Divisional Court set out the legal principles governing the exercise of judicial discretion to strike a party’s pleadings. The court stated that these “three-pronged principles” are well-established in the case, citing several decisions of our Court of Appeal: at para. 31. The court stated the legal principles as follows:
a. Is there a triggering event justifying the striking of pleadings?;
b. Is it appropriate to strike the pleadings in the circumstances of the case?; and
c. Are there other remedies in lieu of striking pleadings that might suffice?
While striking a party’s pleadings for non-compliance is a remedy available to the court, it is to be reserved for only the most serious and exceptional cases. It is to be used sparingly and with great care and even reluctance. See: Stulberg v. Batler, [2009] O.J. No. 4780, 78 R.F.L. (6th) 199 (Ont. C.J.), reversed on other grounds 2010 ONSC 5299, 94 R.F.L. (6th) 375.
The Ontario Court of Appeal noted in Ablett v. Horzempa, 2011 ONCA 633, [2011] O.J. No. 4391, that “the courts must use the utmost caution in resorting to this sanction due to the seriousness of denying a litigant their right to participate in the court process. This is a drastic remedy of last resort which is restricted to particularly egregious cases of deliberate, persistent non-compliance, total disregard for the court process, and failure on the part of the offending party to either comply with or adequately explain non-compliance.”
In Purcaru v. Purcaru, 2010 ONCA 92 (Ont. C.A.), [2010] O.J. No. 427), the Ontario Court of Appeal emphasizes that special care must be taken in family law cases,
The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia 2008 ONCA 866 (CanLII), (2009), 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual case”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to any injustice, which will erode confidence in the justice system.”