What are the factors to be considered by the court on a motion arising out of a failure to comply with a peremptory order?

Ontario, Canada


The following excerpt is from LONDON ECO-ROOF MANUFACTURING INC. v. SOUTH RIVER DEVELOPMENTS LTD., 2019 ONSC 1183 (CanLII):

The plaintiff points to the case of Jourdain v. Ontario, [2008] O.J. No. 1868 (S.C.J.) at para. 12 as setting forth the factors to be considered by the court on a motion arising out of a failure to comply with a peremptory order, namely: 1. An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party's last chance to put his case in order. 2. Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed. 3. This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure. 4. It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred), flouts the order then he can expect no mercy. 5. A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order. 6. The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice. 7. The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weigh very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.

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