The Ontario Superior Court of Justice has once again confirmed that persistent non‑compliance with Orders of the Court can justify one of the most severe procedural remedies available: striking a party’s pleadings. In Benabed v Levasseur, 2026 ONSC 867, Associate Justice Jolley struck the statements of defence of several defendants who repeatedly failed to comply with costs orders and disclosure obligations.
The decision offers insight into when the court may conclude that further indulgence for non-compliant parties fails to serve the interests of justice.
Background
The plaintiff was unable to advance her action due to the defendants’ ongoing failure to comply with multiple court orders. Over a prolonged period, several defendants:
- Failed to pay court‑ordered costs, some outstanding for more than a year;
- Failed to deliver affidavits of documents despite agreed‑upon deadlines;
- Failed to retain counsel where required (in the case of a corporate defendant); and
- Offered no credible explanation or evidence justifying their defaults.
Although extensions had previously been granted, the litigation had still not progressed past the documentary discovery stage. The plaintiff therefore sought an order striking the defendants’ defence pleadings.
The Governing Test
In determining whether to strike a pleading, the court applied the framework set out by the Ontario Court of Appeal in Falcon Lumber Limited v 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310. As summarized by Associate Justice Jolley, the court considers a range of contextual and proportionality factors, including:
- Whether the failure to comply was deliberate or inadvertent;
- Whether the default is clear and unequivocal;
- Whether there is a reasonable explanation for the default;
- Whether there is a credible commitment to cure the default promptly;
- Whether the substance of the default is material or minimal;
- Whether the party remains in default at the time of the motion to strike its pleadings; and
- The impact of the default on the court’s ability to do justice in the particular case.
Application of the Test
Applying these factors, the court struck the defences of all but one of the defendants. The court found that their non‑compliance was deliberate rather than inadvertent, particularly in light of the length of time the orders had been ignored and the absence of meaningful efforts to comply.
The defaults were clear and unequivocal, involving express breaches of costs orders and disclosure obligations. No reasonable explanations were provided, and in one instance submissions were based on an assertion that was demonstrably untrue. The court was also not persuaded that there had been credible commitments to cure their breaches, despite prior assurances to the court.
Importantly, the court emphasized that the failure to deliver affidavits of documents was a substantial default, as it effectively prevented the plaintiff from moving the action forward. All of the affected defendants remained in default at the time of the motion, notwithstanding prior extensions and accommodations.
By contrast, one defendant who had cured their defaults was permitted to maintain their defence.
Practical Implications
The decision in Benabed reinforces several important principles for litigants and counsel:
- Court orders must be obeyed: repeated non‑compliance, especially after extensions are granted, will lead to serious sanctions.
- Costs orders are not trivial: even modest unpaid costs can support a finding of deliberate default when ignored over time.
- Disclosure failures are significant: failure to deliver an affidavit of documents is likely to be treated as a material breach where it stalls the litigation.
- Credibility matters: misleading submissions or unfulfilled assurances will aggravate the court’s analysis.
For civil and estate litigators alike, Benabed is a reminder that non‑compliance with Orders of the Court may bring severe consequences. Where parties are permitted to ignore court orders with impunity, confidence in the justice system is undermined. This decision confirms that, in appropriate cases, the court will act decisively to protect both fairness to compliant parties and the integrity of its process.