In Das Gupta v. Das Gupta (“Das Gupta”)[1], 2025 ONSC 6209, the court struck the Respondent’s Notice of Appearance for breaching court orders, and awarded the Applicant’s costs on an “all inclusive basis” from the Respondent’s share of the estate.[2]

Gerlinde (the “Deceased”) passed away on February 16, 2023, and was survived by her son, Amit (the “Respondent”) and her daughter, Sonya (the “Applicant”).[3] The Respondent was appointed as the Deceased’s Estate Trustee pursuant to the Deceased’s Last Will and Testament. The Respondent was also appointed as the Estate Trustee of his godmother Elsbed’s estate, whose Last Will and Testament provided gifts to the Applicant, the Respondent, and the Deceased.[4]

In December of 2021, the Respondent began acting as the Deceased’s attorney for property. Due to concerns over her mother’s capacity and cognition, the Applicant commenced an application for guardianship of the Deceased.[5]

The Applicant commenced applications against the Respondent in his capacity as Estate Trustee for both Elsbed’s estate and the Deceased’s estate. The court consolidated the applications, which sought various relief, including the passing of accounts for Elsbed’s estate, directions to pass over the Respondent as estate trustee of the Deceased’s estate, and appointing an Estate Trustee During Litigation (“ETDL”), among other relief.[6]

On January 7, 2025, the court appointed an ETDL for the Deceased’s estate and instructed the Respondent to vacate the Deceased’s condo (the “Condo”). The Respondent refused to vacate the Condo, removed its contents, and obstructed the ETDL’s access. As a result, the ETDL required the Sheriff’s assistance to remove the Respondent. [7]

The Respondent continued to ignore various court orders between 2024 – 2025.[8] These orders required the Respondent to provide documentary disclosure, respond to court communications, deliver estate documents, and facilitate the administration of the Deceased’s estate.

Due to the Respondent’s repeated breaches and obstruction of the Deceased’s estate administration, the Applicant moved to strike the Respondent’s Notice of Appearance.

The Law

The court referenced the Rules of Civil Procedure, specifically Rule 60, which permits striking a party’s defense for failure to comply with court orders, and Rule 75, which allows striking filings for failure to attend mandatory mediation.[9]

In its analysis, the court reviewed and applied Last v. Last[10], Way v. Schembri[11], Ponnampalam v. Thiravianathan[12], and Falcon Lumber Ltd. v. 2480375 Ontario Inc[13], to determine whether it was appropriate to strike the Respondent’s pleadings or Notice of Appearance for persistent non-compliance.

The court held it has discretion to strike without requiring it to be a “last resort,” considering factors such as whether the default was willful, prior opportunities to comply were given, the materiality of the default, and the overall impact on the administration of justice.[14]

Analysis

The court noted that litigation costs had risen over two years primarily due to the Respondent’s actions, even though the Deceased’s estate mainly consisted of a modest asset, the Condo.[15] Over the course of litigation, the Respondent drove costs by failing to provide a responding record, filing documents that were not sworn and likely falsely generated, which the court deemed as “meaningless and irrelevant”.[16]

The court found that the Respondent’s breaches were willful and material, continued despite numerous opportunities to comply, and caused significant harm to the Deceased’s estate administration. The court concluded that granting the Respondent any further opportunity would be futile, as his continued participation in the litigation would serve no purpose.[17]

The court ordered the Respondent’s Notice of Appearance to be struck, allowing the consolidated applications to proceed unopposed. [18]

The court awarded the cost of the Applicant’s motion, which was $19,969, payable by the Respondent from his share of the Deceased’s estate.[19]

Concluding Comments

Das Gupta highlights the consequences of persistent non-compliance with court orders, and underscores the importance of following court directions to ensure efficient administration of justice and protection of estate assets.

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[1] Das Gupta v. Das Gupta, 2025 ONSC 6209

[2] Ibid at para 89.

[3] Ibid at para 2.

[4] Ibid at para 2.

[5] Ibid at para 3.

[6] Ibid at para 3.

[7] Ibid at para 4.

[8] Ibid at para 4.

[9] Ibid at para 69.

[10] Ibid at para 70.

[11] Ibid at para 74.

[12] Ibid at para 77.

[13] Ibid at para 80.

[14] Ibid at para 81.

[15] Ibid at para 82.

[16] Ibid at para 83.

[17] Ibid at para 82.

[18] Ibid at para 95.

[19] Ibid at para 89.