The Court Strikes Back: Recent Caselaw Issues Warnings to Litigants in Breach of Interlocutory Orders
Beard Winter Defender – February 2026
by Damian Di Biase, Lawyer and Alexis Lamy, Student-at-Law
Two recent cases evidence the Superior Court of Justice’s willingness to strike the pleadings of parties in breach of interlocutory orders; a remedy that has often been utilized as a last resort. The cases below demonstrate that the Court will not tolerate excuses for non-compliance, or prejudice arising from the defaulting party intentionally causing delay, frivolously increasing costs, and preventing the adjudication of the case on its merits.
Way v. Schembri, 2025 ONSC 946 (“Way”) – Pleadings struck for failure to produce documents
Way pertained to a real estate dispute between two former business partners. Two actions arose, one in which Schembri was the Plaintiff and another in which he was the Defendant. Ultimately, due to non-compliance with document production and interlocutory orders, Schembri’s pleadings were struck in their entirety, a decision upheld by the Ontario Court of Appeal.
The procedural history warranting the above sanctions spanned four years and involved two motions, plus multiple case conferences. In 2017, after a failed summary judgment motion, Schembri was ordered to make several document productions; an order which went unfulfilled for several years. In 2023, Way obtained an order against Schembri for a further affidavit of documents. Despite Schembri’s decision to appeal the two orders, the Court advised that absent a stay, Schembri was required to comply with both orders. In 2024, after years of non-compliance, Way escalated the situation by requesting a case conference to impose a timetable for document production. A “Peremptory Order” was made at this conference, in which two deadlines were ordered, the second of which Schembri missed entirely. Overall, Schembri only provided eight percent of the total documents ordered to be produced.
The Court outlined the following principles when deciding to dismiss or strike a pleading: (1) the remedy is not limited to last resort situations; (2) the remedy should be proportional to the extent that the non-compliant party has undermined the justice system by impeding efficiency and cost effectiveness, and (3) common sense factors, including whether the non-compliance was clear, unequivocal, deliberate, and reasonably explained, should be considered..
In deciding to dismiss and strike Schembri’s pleadings, the Court emphasized that litigants have a fundamental obligation to produce documents. Schembri had ample opportunities to comply with the order(s) and offered no real explanation to excuse himself. The court characterized Schembri’s actions as taking a “wait and see” approach. His excuses of seeking leave to appeal the decisions were not valid. Parties must meet a high onus when justifying or excusing breaches of such interlocutory orders. Schembri had none, despite being aware of his obligations. The Court concluded Schembri’s behavior threatened to undermine the integrity of the justice system given the delay and waste of resources, and prevented the adjudication of the case on its merits.
Pichette v. 13941281 Canada Inc., 2025 ONSC 7231 (“Pichette”) – Pleadings struck for failure to pay costs
The case of Pichette also happens to arise from a dispute in the real estate context. The plaintiff sought to strike the statement of defence due to a failure to pay costs. This was ultimately granted following a motion heard in December 2025, two months before the summary trial was to be heard. The unpaid costs were ordered not long before the motion, in decisions dated September and November 2025. The defendant was given a deadline to cure his default before this motion and failed to do so without explanation.
Despite the Court holding the striking of a pleading is generally a last resort, reserved for only after the defaulting party has had an opportunity to cure their default and considering the merits of their defense, the Court nonetheless struck the defendant’s defense. The Court found the defendant had no intention of paying the costs award. The defendant’s pleading was meritless with no viable defenses. The Court concluded the plaintiff would be prejudiced by proceeding with litigation against a party with no intention of complying with orders and who had acted in a way so as to escalate the plaintiff’s costs.
Takeaways
The above cases demonstrate the Court will only allow a litigant a finite number of opportunities to become compliant with interlocutory orders. In Pichette, the defense was struck for non-compliance that had gone on for mere months only, thereby illustrating that a litigant should not take it for granted that they will get even a second chance to cure their default. Overall, these rulings, along with the new deadlines and severe penalties for breaches of said timelines proposed to be implemented in the new Rules of Civil Procedure, point to the Court’s intent to change the litigation culture that excuses and shrugs off these sorts of breaches. Litigants should be cognizant of these decisions when determining litigation strategy.