Mullin v. Sherlock: ONCA Provides Framework for Motions to Strike Based on Non-Disclosure and Encourages Alternative Remedies

  • February 11, 2019
  • Vanessa Lam, research lawyer, The Law Office of Vanessa Lam

There is no shortage of Court of Appeal decisions on motions to strike based on non-compliance with disclosure obligations: see, e.g. Purcaru v. Purcaru, 2010 ONCA 92; Roberts v. Roberts, 2015 ONCA 450; and Manchanda v. Thethi, 2016 ONCA 909, aff’ing 2016 ONSC 3776 (“Manchanda, 2016 ONSC”); leave to appeal ref’d Thethi v. Manchanda, 2017 CarswellOnt 6262 (SCC).

These cases were all considered in the recent decision of Mullin v. Sherlock, 2018 ONCA 1063 (“Mullin”). In the judgment released December 21, 2018, Justice Pepall (Justice Roberts and Millar concurring) reviews the challenges raised by motions to strike based on non-disclosure and sets out the general framework for these types of motions. It also appears that the court is encouraging the use of creative remedies beyond just striking documents.

The Family Law Rules

First, an understanding of the relevant Family Law Rules is required:
• Rules 1(8)-(8.1) set out the various remedies – including an order striking out a document – that are available to the court to address the failure to obey an order (R. 1(8)) or the Family Law Rules (R. 1(8.1)).
• Rule 1(8.4) becomes applicable if the court decides to strike out a party’s application, answer, motion to change, or response to motion to change in a case. It sets out the consequences that apply, unless the court orders otherwise.
• Rules 2(2)-(5), which sets out the primarily objective of the Family Law Rules to deal with a case justly (R. 2(2)), explains what that includes (R. 2(3)), and sets out the duty to promote the primary objective (R. 2(4)) and the duty to manage cases (R. 2(5)).
• Rule 13 covers financial disclosure obligations. In particular, amendments made in 2015 specify disclosure that is required for certain types of claims. For example, certain disclosure is required in relation to a claim for support (R. 13(3.1)) or in relation to a claim under Part 1 of the Family Law Act (R. 13(3.3)). There are also timing requirements (R. 13(3.2)). If a party believes that financial disclosure is insufficient, the party shall first ask for the additional information and, if it is not provided within 7 days, the court may order its production (R. 13(11)).
(See Schedule “A” at the end of this article for the full text of these Rules)