What is the obligation of a party moving for an order that will affect the rights of the absent party to make full and fair disclosure of all material facts?
Ontario, Canada
The following excerpt is from Gong v. Neuhaus Management Ltd., 2021 ONSC 531 (CanLII):
No authority need be cited in support of the well-settled principle that a party moving for an order that will affect the rights of a party to whom no notice has been given must make full and fair disclosure of all material facts. The reason for imposing such an onus on the moving party was articulated by Sharpe J. (as he then was) in United States of America v. Friedland, 1996 CarswellOnt 5566, at para. 26: The Judge hearing an ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injustice will be done to the absent party.
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