Two recent decisions arising in the wrongful dismissal context contextualize the importance of attending examinations for discovery. Failure to attend examinations while otherwise being a difficult party carries the weighty risk of having your pleadings struck, and eventually if you’re the employer, default judgement being rendered against you.
The Governing Principles
Rule 34.15(1)(b) of the Rules of Civil Procedure provides that where a person fails to attend for an examination for discovery, one remedy available to the Court is to dismiss the party’s proceeding or strike out the party’s defence.
An order striking a defence under this Rule is discretionary and guided by proportionality. The Court considers the following “common sense factors” when deciding whether to strike out a pleading for a party’s failure to comply with its discovery obligations:
- Whether the party’s failure is deliberate or inadvertent;
- Whether the failure is clear and unequivocal;
- Where the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly;
- Whether the substance of the default is material or minimal;
- The extent to which the party remains in default at the time of the request to strike out its pleading; and
- The impact of the default on the ability of the court to do justice in the particular case.
Recent Examples in the Employment Bar
The Ontario Superior Court of Justice has considered the appropriate consequence for failing to attend discoveries in two decisions in October 2025.
In Ferguson v Yorkwest Plumbing Supply Inc, 2025 ONSC 5866, discovery scheduling broke down resulting in repeated delays. The Court found the employer had engaged in delay “by putting up roadblocks” on more than one occasion. In light of the pattern of non-compliance and its impact on the orderly progression of the matter, the Court struck the employer’s statement of defence, and in this decision, granted default judgment to the plaintiff.
By contrast, in Voegelin v Wade and Company, 2025 ONSC 5988, the Court declined to strike the employer’s defence. Instead, it ordered the employer’s representative (proposed by the plaintiff) to attend an examination for discovery. The Court emphasized that striking pleadings is a last resort and noted the representative had failed to attend only once. Only one notice of examination had been served and no prior court orders compelled attendance. The Court also observed that its ability to do justice had not been compromised, partly because the plaintiff contributed to delay by waiting nearly two years after the missed attendance to bring the motion.
Takeaways for Employers
Although an isolated incident of failing to attend an examination for discovery is unlikely to result in pleadings being struck, the recent case law highlights that parties nevertheless ought to tread carefully when disregarding (or at least appearing to disregard) their discovery obligations. Repeated delays or absences, or other circumstances that suggest a party is impeding the reasonable progress of an action may prejudice their case. Former employees risk their claim being struck altogether and being unable to proceed with the action; employers risk their defence being struck and default judgement being ordered against them.
In wrongful dismissal cases, both sides are best served by cooperating to schedule discovery dates and agreeing on an appropriate discovery representative for the employer, thereby avoiding unnecessary motions and ensuring the case proceeds on the merits.
About the Authors
Nicole and Derek are lawyers at Lenczner Slaght LLP. Their commercial litigation practices include a special focus on employment law, including high stakes and high value termination for cause and wrongful dismissal actions, as well as actions concerning the enforcement of restrictive covenants. They can be contacted at nnaglie@litigate.com and dhooper@litigate.com.
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