“The following principles emerge from a review of the caselaw in relation to the duties on a litigant who proceeds without notice. These duties apply wherever a matter proceeds without notice, such as: on an ex parte emergency motion; where the responding party is in default having not filed an answer; and even where the responding party has filed an answer but that answer has been struck for failure to meet obligations in the litigation process. While the duty is at its highest on an ex parte emergency motion where the court is typically asked to make decisions very quickly, and perhaps somewhat attenuated where a respondent party is in “flagrant violation” of court orders, in my view there is no “sliding scale” when it comes to the obligation to disclose material facts to the court.
There is a “very high duty” on the applicant to make “full and frank disclosure” to the court, and a “positive duty” to at least “alert the court” to material facts required to make a just determination: see Caldwell v. Caldwell (2007), 2007 CanLII 1913 (ON SC), 51 R.F.L. (6th) 399 (Ont. S.C.) at paras. 52-53. As stated by Timms J. in that case at para. 52, where the hearing proceeded on an uncontested basis following the striking of pleadings, “there is a reason that the oath administered to witnesses in our courts compels them to ‘tell the truth, the whole truth, and nothing but the truth.’”. In Caldwell, the court found that the applicant failed to meet these obligations when she omitted to advise the court of the respondent’s inheritance, his job loss, and his support obligations to his first wife. See also Sangster v. Sangster (2003), 2003 CanLII 48248 (ON CA), 34 R.F.L. (5th) 154 (Ont. C.A.), an appeal of a decision declining to set aside a final order obtained on default, in which the Court of Appeal for Ontario stated at para. 7:
The want of full and fair disclosure is sufficient reason to allow the appeal and we would allow the appeal on that basis alone. A court is entitled to rely on materials filed as being full and frank, particularly where, as here, the motion is brought on an ex parte basis.
In Caldwell, the court held that the “duty of candour” on a party seeking default judgment is akin to the duty on a party seeking an order on a motion without notice (at para. 53). The caselaw governing the obligations on parties who come to court without notice establish a very high standard of transparency and accountability: Ahmed v. Hawthorne, 2016 ONSC 571, 75 R.F.L. (7th) 230, at para. 24. In Ahmed, where a wife moved to set aside a divorce judgment obtained without notice, Myers J. stated at para. 24: “Parties who seek relief without notice must make full and frank disclosure of all material facts. The failure to do so can itself lead to the order being set aside even where the moving party establishes that he ultimately had good grounds for the relief sought.” In D’Alessio v. D’Alessio, 2010 ONSC 321, 75 R.F.L. (7th) 230, where the husband sought to set aside a default judgment, Ray J. described the overarching test as one of fairness.
Where inaccurate facts could have materially impacted the court’s assessment of the case, thus affecting the outcome, an order may be set aside: Ontario (Director, Family Responsibility Office) v. Shore, 2010 ONSC 5267, [2010] O.J. No. 4148 at para. 8. In Shore, the applicant proceeded on an uncontested basis after the respondent’s pleadings were struck. The final order obtained by the applicant was set aside on findings that Ms. Shore had provided one-sided and inaccurate information to the court. The court found that she failed in her duty to be “careful and candid” and that the misinformation conveyed resulted in a different order than would otherwise have been made. See also Cadas v. Cadas, 2013 ONSC 2608, 34 R.F.L. (7th) 357, per Stevenson J. at paras. 42-48.
The lack of intention to mislead is not a defence to the failure to make full and frank disclosure. The issue is whether the court was in fact mislead: Rosenhek v. Kerzner, 1997 CarswellOnt 2148 (Ont. Gen. Div.) at para. 17; Mosregion Investments Corp. v. Ukraine International Airlines (2009), 2009 CanLII 63600 (ON SCDC), 99 O.R. (3d) 49 (Ont. S.C., at para. 15. As stated by Cameron J. in Rosenhek at para. 19:
This court relies on full, true, and plain disclosure in all evidence presented to it. It is the foundation for the administration of justice. Compliance with the principle must be scrupulous where a party opposite in interest is not given the opportunity to cross-examine on the affidavit and present other evidence to ensure the facts before the court are complete, true, and plain. Lack of mala fides is not the issue. Substantial compliance with the principle is the issue.
Relevant and material facts relied upon when proceeding without notice, in particular on an ex parte urgent motion, should be specifically referred to in the body of the affidavit: Mosregion at para. 14. See also 830356 Ontario Inc. v. 156170 Canada Ltd., 1995 CarswellOnt 4360 (Ont. Gen. Div.) at para. 23.
However, on a default hearing or uncontested trial, where the court is not under similar time constraints, a court may be taken to be aware of the contents of exhibits filed as evidence in the hearing: Dodge v. Dodge (2007), 2007 CanLII 80075 (ON SC), 44 R.F.L. (6th) 317 (Ont. S.C.) at para. 48.
The fact that a party’s pleadings have been struck does not open the door to permit the moving party to make less than full disclosure of material facts. Thus, in Shore, the court stated at para. 2, “the fact that Mr. Shore was non-compliant will not deprive him of a remedy in such circumstances as were thereafter created by Ms. Martin.” Similarly, in Caldwell at para. 66, Timms J. stated:
While it is tempting to say that the respondent’s prior “bad conduct” should bar him from arguing that the order of Salmers J. should be changed, it is my view that justice requires that he be allowed to do so.
However, the positive duty referred to above does not extend so far as to prove the respondent’s case for him. In Dodge, the husband sought to set aside an order where he argued in part that the evidence placed before the court on the default hearing was lacking “critical” information that was intentionally withheld from the court. Campbell J. found that all necessary, appropriate, and relevant information was put before the court and that the court was aware of that information. Counsel’s obligation was to be open, honest, trustworthy, reliable, and candid, but there is no obligation to put the other party’s claims or allegations before the court or argue the other party’s case. The husband could not shift his responsibility for his own “avoidant” behavior onto the wife’s counsel (paras. 45–48).
In Gupta v. Gupta, 2019 ONSC 20, [2019] O.J. No. 304, where the father alleged that the mother obtained an order based on fraud and the father’s pleadings had been struck for “flagrant violations of court orders,” the court stated the “Mother’s obligation is to put forward such relevant evidence that Father produced up to that point, as to his income and the value of the assets. She has no obligation to test the veracity, accuracy or reliability of that evidence, nor is she obliged to unearth other evidence within Father’s power to disclose, that he did not disclose” (para. 36). While Gupta seems to suggest a lower standard of required disclosure where the respondent’s behavior has led to the striking of pleadings, the case nevertheless confirms the obligation on an applicant to put forward the “relevant” evidence of the respondent.
I suggest that it can never be appropriate or acceptable to omit material facts or materially misstate evidence to the court. Even where a respondent has failed to obey court orders, resulting in his or her pleadings being struck, this does not justify the applicant’s filing of court documents with material omissions: Caldwell, at para. 55.
I note that some of the caselaw with respect to full disclosure cited above developed under the Ontario Rules of Civil Procedure, in particular under r. 39.01(6) which states that where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and that the failure to do so is in itself sufficient ground to set aside any order obtained. In my view, there would be no reason why the disclosure obligations on applicants proceeding in the family context on an uncontested or ex parte basis or otherwise without notice, would be any less exacting than in the civil context more generally.”