This decision arose from an Application by the Plaintiff to strike the Statement of Defence for spoliation of evidence and for Summary Judgment. In the alternative, the Plaintiff sought Questioning of an accountant. The Individual Defendant cross-applied to strike the Statement of Claim for inordinate and inexcusable delay.

The Court held that the issues relating to the claims of spoliation were best left for Trial. As such, none of the conditions for an Order striking a Statement of Defence as set out in Rule 3.68(2) were met. There was no issue with respect to jurisdiction, a reasonable defence to the claim was pleaded, the pleading was not frivolous, irrelevant or improper, nor did it constitute an abuse of process.

The Court rejected the Plaintiff’s request for Summary Judgment pursuant to Rule 7.3, determining that there were several triable issues that should be heard by a Judge.

The Court also considered the Individual Defendant’s Application to dismiss the Action for delay pursuant to Rule 4.31 and noted that, while the delay may inordinate, it was not inexcusable. There were periods where the delay was attributed to the Defendant and, as such, the Action was not dismissed for delay.

The Plaintiff also sought to Question the accountant of the Corporate Defendant. The Court held that it was not clear what legal basis would permit the Questioning of the accountant pursuant to Rule 5.17 as he was not the Individual Defendant’s accountant and Summary Judgment had previously been obtained as against the Corporate Defendant. The Questioning of the accountant, however, was not before the Court and was a matter pursued pursuant to an adjournment order. Accordingly, the Court made no Order on Questioning.