Court flushes plumbing supply company’s defense down the drain after it repeatedly stalled examinations in wrongful dismissal case

A plumber fixes a leaking pipe. Photo: Canva/HR Law Canada

A plumbing supply company in Ontario has had its statement of defence struck by a court after it was found to be uncooperative in a wrongful dismissal case.

The case involved a former employee of Yorkwest Plumbing Supply Inc. who filed a lawsuit for wrongful dismissal and unpaid commissions in August 2018. The defendant served a statement of defence in September 2018. Despite attempts by the worker’s counsel to schedule examinations for discovery, the employer’s counsel ignored the requests and failed to cooperate.

After multiple unsuccessful attempts to schedule examinations, the plaintiff issued a certificate of non-attendance and brought a motion to strike the statement of defence. A case conference was held in January 2022, where Justice Morgan ordered the examinations to be completed by Feb. 28, 2022, and warned the defendant to stop delaying the process.

However, the defendant continued to obstruct the examinations. When the plaintiff served a notice for the examinations, the defendant objected to being examined first but failed to provide any legal basis for its position. The examinations were ultimately canceled by the plaintiff’s counsel to avoid additional costs.

On August 16, 2022, the plaintiff brought a motion to strike the statement of defence, which was granted by Associate Justice K. Jolley. The court considered the history of the litigation and found that the defendant’s conduct had been egregious and ongoing. The defendant’s repeated delays and refusal to cooperate led to the decision to strike the statement of defence.

The court made several findings of fact, including the defendant’s counsel’s non-response to scheduling attempts, the warning issued by Justice Morgan, and the defendant’s final objection to being examined first, which was seen as another attempt to delay the process.

The defendant appealed the decision, raising several issues for review. They argued that the case was mistakenly described as a simplified procedure matter, that the court erred in referring to the Wallace v. Grain Grower decision, that the order of examination was determined incorrectly, and that the court failed to consider less severe sanctions.

The Divisional Court dismissed these arguments, stating that the misdescription of the case as a simplified procedure matter was minor and did not affect the core decision. The court also found that the reference to the Wallace decision was appropriate as it addressed principles of good faith and conduct in litigation.

Regarding the order of examination, the court concluded that the party who serves a notice of examination first generally has the right to determine the order unless the court orders otherwise. Finally, the court determined that striking the statement of defence was an appropriate response to the defendant’s repeated obstruction and lack of cooperation.

This ruling serves as a reminder that parties in civil litigation are expected to cooperate and work collaboratively in scheduling examinations for discovery. Delays and obstruction can have serious consequences, including the striking of a statement of defence.

The employer’s appeal was dismissed, and costs were awarded to the worker in the amount of $10,000.

For more information, see Ferguson v Yorkwest Plumbing Supply Inc., 2023 ONSC 3720 (CanLII)

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