Tremblay v. Chiasson (1980), 32 N.B.R.(2d) 501 (TD);
32 R.N.-B.(2e) 501; 78 A.P.R. 501
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Tremblay, Landry and Landry v. Chiasson
(M/C/367/80)
Indexed As: Tremblay, Landry and Landry v. Chiasson
Répertorié: Tremblay, Landry and Landry v. Chiasson
New Brunswick Court of Queen’s Bench
Trial Division
Meldrum, J.
March 6, 1980.
Summary:
Résumé:
This headnote contains no summary.
Practice – Topic 2232
Pleadings – Striking out pleadings – Grounds – Non-compliance with discovery rules – The plaintiffs applied to strike out the defence and for leave to enter interlocutory judgment – The plaintffs and defendant signed a written consent for examination for discovery, but because of a conflict with a court appearance, the defendant did not appear for the examination – The plaintiffs argued that the defence should be struck because of the defendants failure to appear for the examination and because the defendant had seven weeks actual notice of the date for examination and did not give notice of his conflict until 4 days before the date for examination – The defendant attempted to blame the plaintiffs, alleging that the plaintiffs failed to give particulars after a request by the defendant, that the notice of the date of examination was not given until the last minute when the defendant was in a conflict situation and that the plaintiffs would not accept alternate examination dates offered by the defendant – The New Brunswick Court of Queen’s Bench, Trial Division, dismissed the application on the technical grounds that the consent to examination was never made an order of the court and that the defendant was not paid or tendered conduct money – The Court of Queen’s Bench further stated that the applicable Rules of Court were not intended to be rigidly applied to those who through neglect or misunderstanding temporarily fail, but to those who wilfully refuse or consciously seek to avoid their duty to the court.
Counsel:
Paul Godin, for the plaintiffs;
Mark Yeoman, Q.C., for the defendant.
This case was heard by MELDRUM, J., of the New Brunswick Court of Queen’s Bench, Trial Division.
On March 6, 1980, MELDRUM, J., delivered the following judgment:
