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High Court, in proceedings relating to breach of contract, refuses to dismiss plaintiff's claim for failure to comply with a discovery order, on the basis that the documents which the defendants claim were deliberately concealed do not fall within any of the categories originally ordered by the Court.
Application to dismiss proceedings for failure to comply with discovery order - application to dismiss for want of prosecution - claim is for breach of contract - materials provided by defendants alleged to be deficient - proceedings commenced in 2010 - plaintiff failed to produce books and records supporting his claim for damages - late in the day, plaintiff produced some documentation purporting to support damages claim - whether plaintiff deliberately concealed material - whether plaintiff continues to conceal material - whether plaintiff's failure to discover material will result in unfair trial - Court finds that material allegedly not disclosed does not fall within original categories ordered - accordingly, Court finds that defendants' lack of documentation relating to damages flows from their own failure to seek same - Court finds it cannot determine whether there has been deliberate attempt to conceal material on affidavit only - Court not convinced that absence of material sought will result in unfair trial - awards costs of motion to defendants due to plaintiff's failure to respond to defendants in advance of motion and failure to make discovery in proper form.
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