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CIVIL PROCEDURE - Striking out pleadings or allegations - Time

Friday, September 20, 2019 @ 6:21 AM  

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Appeal by the defendant from the dismissal of his application to extend the deadline for service of his affidavit of documents and the striking of his statement of defence and counterclaim. A consent order provided that if the appellant failed to serve his affidavit of documents by a set deadline, the appellant’s statement of defence and counterclaim would be struck. The appellant did not meet the deadline and the respondent applied to have the appellant’s pleadings struck. In response, the appellant served his affidavit of documents, 12 days late, and applied for an order extending the deadline to the date on which it was served. The chambers judge found his discretion to vary the consent order could only be exercised on grounds that would vitiate a contract. He further concluded no such grounds existed.

HELD: Appeal dismissed. The chambers judge did not err in law by incorrectly identifying the law governing the exercise of his discretion pursuant to rules 13-7(2) and (3) of the Queen’s Bench Rules. The substantive law of contracts was not altered by the rules. He did not err in law in failing to find the consent order was vitiated by reason of illegality or by frustration. The contract embodied in the consent order was not contrary to public policy. The evidence was sufficient to support the conclusion that the appellant and his counsel were not sufficiently diligent.

Future Four Agro Inc. v. Gustafson, [2019] S.J. No. 272, Saskatchewan Court of Appeal, P.A. Whitmore, J.A. Ryan-Froslie and B. Barrington-Foote JJ.A., July 30, 2019. Digest No. TLD-September162019014