IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Sterritt v. Sebastian,

2004 BCSC 708

Date: 20040526

Docket: S013118

Registry: Vancouver

Between:

Neil J. Sterritt

Plaintiff

And

Gordon Sebastian and Darlene Simpson

Defendants

Before: The Honourable Madam Justice Wedge

Reasons for Judgment

Counsel for Plaintiff L. McGrady, Q.C.& (V.R.) Sam Black

Appearing In Person G. Sebastian

Date and Place of Hearing: April 14, 2004

New Westminster, B.C.

 

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Nature of the Application

[1] Neil Sterritt applies for an order striking the Statement of Defence of Gordon Sebastian. Mr. Sterritt argues that Mr. Sebastian has failed to comply not only with the Rules of Court concerning the production of documents, but also orders directing document production that were granted earlier in this litigation.

[2] The action against the co-defendant, Darlene Simpson, was discontinued earlier this year.

Issues in the Action

[3] This is an action in defamation. As the Statement of Claim discloses, Mr. Sterritt works as an independent consultant and advisor to many aboriginal nations, including several in this province. He has extensive experience mapping aboriginal territory. He co-authored the book Tribal Boundaries in the Nass Watershed, the subject matter of which is described by the book’s title. Mr. Sterritt was an expert witness for the plaintiffs in the trial of Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185 (B.C.S.C.). During that trial, involving a land claim action brought by the Gitksan Nation, he gave expert testimony regarding the boundaries of the territories in dispute. There may well be a

 

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new trial of the Delgamuukw action and Mr. Sterritt may again be called as a witness.

[4] Mr. Sebastian is a lawyer who has held various positions with the Gitksan. He is currently the Executive Director of the Gitksan Treaty Society, a position to which he was appointed in June 2003. He held the position of coordinator and chair of the Gitksan Litigation Team for many years before that, from approximately 1995 onward, and was, for a time, legal counsel to the Litigation Team.

[5] Mr. Sterritt alleges that Mr. Sebastian, between July 2000 and January 2001, while serving as coordinator and chair of the Litigation Team, made a series of defamatory comments about Mr. Sterritt. From Mr. Sterritt’s perspective, among the most serious of the comments was Mr. Sebastian’s claim that Mr. Sterritt developed documents, including maps and other documents used in his book, Tribal Boundaries in the Nass Watershed, that took territory from one of the Gitksan Houses (the House of Skii K’m lax ha) and gave it to the Gitanyow people, another First Nations to whom Mr. Sterritt had provided his consulting services. The sting of this claim involved, in part, the undermining of Mr. Sterritt’s integrity as a consultant in aboriginal matters. In addition, Mr. Sterritt is a Gitksan person, and the assertion that he has

 

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given away Gitksan land to non-Gitksan clients suggests disloyalty to his family.

[6] Mr. Sebastian relies on the defence of absolute privilege, but relies primarily on qualified privilege and the "rolled-up plea". The foundation of the qualified privilegedefence is Mr. Sebastian’s role as coordinator and chair of the Litigation Team during the time the comments were made. He says that as a result of this role, he had a duty to communicate these matters to the Hereditary Chiefs, the Litigation Team, and others. The "rolled-up plea" is essentially a plea of fair comment, and accordingly it falls to Mr. Sebastian to prove the truth of the facts on which the comment is based. Fair comment also puts the defendant’s honest belief in issue, and, for that reason, the information Mr. Sebastian had at the time the comment was made is relevant.

Chronology of Discovery

[7] The action was commenced in June 2001. Mr. Sterritt’s Demand for Discovery of Documents was issued July 6, 2001. At the same time, he requested particulars. Efforts to obtain satisfactory particulars ensued. In September 2001, after sending numerous letters and receiving three sets of unsatisfactory particulars, Mr. Sterritt applied for an order

 

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for better particulars. The order was granted September 20, 2001, as a result of which Mr. Sebastian delivered his fourth set of particulars. They were not satisfactory. Mr. Sterritt prepared another application, but adjourned the application upon Mr. Sebastian’s promise to deliver better particulars. Those particulars were delivered November 30, 2001.

[8] In 2002, a trial date of May 3, 2004 was set. I was assigned case management and trial judge.

[9] Difficulties similar to those experienced by the plaintiff in the obtaining of particulars arose with respect to obtaining production of Mr. Sebastian’s documents. The defendant’s first list of documents described only a handful of documents, which was surprising given the broad-ranging subject matter of the alleged defamatory comments and the defences raised by Mr. Sebastian. Even documents referred to in the pleadings were not included in the list. In April 2003, Mr. Sterritt applied for an order that Mr. Sebastian provide an Affidavit of Documents. On May 15, 2003, I ordered

that Mr. Sebastian file an Affidavit within thirty days of the Order. Mr. Sterritt was to reciprocate thirty days after Mr. Sebastian delivered his Affidavit.

10] Mr. Sebastian did not comply with the thirty day deadline. After written requests by the plaintiff, Mr.

 

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Sebastian delivered his Affidavit on July 24, 2003. The Affidavit still failed to include documents referred to in the pleadings and the particulars.

[11] In October of 2003, Mr. Sterritt applied for an order permitting cross-examination of Mr. Sebastian on his Affidavit of Documents. On December 11, 2003, I granted the application but invited Mr. Sebastian to deliver another, more extensive, Affidavit before the examination occurred. On January 7, 2004, Mr. Sebastian delivered a second Affidavit, which did not yet include all the documents referred to in the pleadings and particulars.

[12] Cross-examination of Mr. Sebastian ensued on February 2 and 3, 2004, in Smithers, B.C.

[13] Following the cross-examination of Mr. Sebastian, Mr. Sterritt prepared and served an application to strike the Defence on the basis that Mr. Sebastian had failed to comply with the Rules concerning production of documents and the Order of December 11, 2003. On March 3, 2004, Mr. Sebastian delivered a third Affidavit of Documents in response to the application. With one exception, this Affidavit included the documents Mr. Sebastian specifically agreed to include during his cross-examination in February.

 

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[14] Mr. Sebastian did not indicate, in any of the three Affidavits verifying his list of documents, that he had reviewed all documents in his possession or control. Nor did he describe the steps he had taken to search for documents relating to the issues in the litigation.

[15] At the hearing in December 2003, Mr. Sebastian advised the Court that he had not listed or disclosed certain documents because he thought Mr. Sterritt either had them in his possession or could easily obtain them from other sources. He took that position despite the fact that he is legal counsel with an active litigation practice. I explained to

Mr. Sebastian that his position was inconsistent with his obligation to disclose any and all documents currently or at one time in his possession or control that may be relevant to the issues in the litigation, whether or not the plaintiff had possession of, or access to, those documents.

[16] Despite this direction, in cross-examination on his Affidavit of Documents less than two months later, Mr. Sebastian repeatedly took the position that he did not list or disclose documents that he assumed were already in Mr. Sterritt’s possession or that he could easily obtain through his own efforts. He also took the position, repeatedly, that

 

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it was Mr. Sterritt’s duty to provide documents to Mr. Sebastian.

[17] In cross-examination, Mr. Sebastian was asked what steps he had taken to review his documents when preparing his list of Documents. He replied that he reviewed his Statement of Defence. He also said that he had declined to search for documents relevant to his defence in the defamation action because he was concerned that in the course of doing so, he may find documents harmful to the Gitksan position or litigation strategy concerning tribal boundaries.

[18] In his third Affidavit of Documents filed after his cross-examination, Mr. Sebastian repeated his position that Mr. Sterritt had possession of, or access to, all relevant documents. He deposed, for example, that Mr. Sterritt had the door keys to the Gitksan library, which contains information concerning tribal boundaries and, indeed, copies of some of Mr. Sterritt’s own research material relating to those matters.

[19] On April 13, 2004, the day this application was heard, Mr. Sebastian filed a fourth Affidavit of Documents. In it, he described for the first time the steps he had taken to search for documents. He deposed that he looked for documents

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in his law office, at his home, and in a storage room he has kept for several years.

Failure to Disclose Documents

[20] Mr. Sebastian was asked in cross-examination on his Affidavit of Documents specific questions about documents concerning strategies of the Gitksan Litigation Team and the Treaty Society. He denied the existence of any such documents. In his fourth Affidavit, filed the day of the hearing, he reiterated that denial. He deposed that while his newly amended list of documents was not long, this was in part due to "the sensitivity of the boundary issue that lies at the heart of this litigation". He deposed further that as the former chairperson of the Litigation Team, he knew that many of the Litigation Team members were reluctant to commit their views on the boundary issue to paper, particularly because they were contemplating the possibility of commencing a new

trial of the Delgamuukw case.

[21] However, Mr. Sterritt has produced a document that significantly undermines Mr. Sebastian’s assertion. It is a memorandum dated June 26, 2002, from Christine Scotnicki to the Gitksan Legal Team, the Litigation Team and various others. It is common ground that Ms. Scotnicki was a member of the Legal Team. The memo deals, in part, with the issue of

 

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tribal boundaries. It records a discussion that took place during a meeting of the Legal Team held on June 19, 2002 with respect to Mr. Sterritt’s book Tribal Boundaries in the Nass Watershed. The memo reads, in part, as follows: At our Legal Team meeting last Wednesday, June 19th, one of the agenda items was addressing Elmer’s request to the Legal Team to decide whether we would stand behind the Tribal Boundaries book as it exists, or whether a statement would be issued to correct the book. We had a lengthy discussion, in which Board Chairman Jim Angus participated. The end result was that a decision was made to stand behind the book because: 1 it was created to document why the Gitxan were opposed to part of the Nisga’a Treaty; and 2 it was primarily intended to deal with the outer boundary.

[22] The document indicates the distribution of copies to, among others, the Litigation Team and the Legal Team. Mr. Sebastian was a member of the Litigation Team.

[23] The document is clearly relevant because it reflects a decision by the Gitksan Legal Team to endorse Mr. Sterritt’s work on tribal boundaries, the very subject of several of Mr. Sebastian’s impugned comments. The document also raises the prospect that there may be other related documents relevant to the issues in the defamation action, such as minutes of the June 19, 2002 meeting.

 

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[24] Mr. Sebastian, in his submissions to the Court on this application, acknowledged that he had attended the June 19, 2002 meeting when the discussion about endorsing Tribal Boundaries took place. He acknowledged having reviewed the memorandum, likely at the time it was distributed. He also acknowledged that the memorandum was highly relevant to the litigation. He said, however, that he had not found the memo in his search for documents.

[25] Mr. Sebastian advised the Court that he had forgotten about the existence of the memo. I have some difficulty with that explanation, given that he was the chair of the Gitksan Litigation Team, given the significance of the memo to the claims he has made about Mr. Sterritt’s mapping of the tribal boundaries, and given that Mr. Sterritt had already begun the defamation action in response to those claims. A decision by the Litigation Team to support Mr. Sterritt’s work on tribal boundaries, in light of Mr. Sebastian’s comments and the ensuing lawsuit, would be difficult to forget, as would amemorandum describing the decision and the basis for it.

[26] Mr. Sebastian acknowledged the significance of the memorandum and agreed that it ought to have been produced.

[27] Mr. Sebastian further acknowledged that one would likely find a copy of the memo in the files of the Gitksan Treaty

 

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Society, of which he is currently the Executive Director. Presumably, one would also find it in the files of the Litigation Team. From that acknowledgement, I infer that Mr. Sebastian has not reviewed the files of the Treaty Society for purposes of making document disclosure in this case.

[28] There are additional documents authored by or in the possession of Mr. Sebastian that have not yet been disclosed by him. First, there are Gitksan Treaty Society Staff Reports prepared by Mr. Sebastian in 2003 and 2004, collected in an information package for ongoing meetings concerning land claim negotiations. In several of the Staff Reports, Mr. Sebastian refers to the map used at the Delgamuukw trial and the 1977 Gitksan Carrier map which contains areas to which Skii k’m lax ha lays claim. He makes the point that the Gitksan Treaty Society has no authority to dispute the contents of those maps.

[29] These comments of Mr. Sebastian are obviously relevant to the defamation action because Mr. Sebastian has relied on the difference between the 1977 map and the Delgamuukw trial map to defend his claim that Mr. Sterritt has given Skii k’m lax ha territory to others. The comments in the Staff Reports appear to assist Mr. Sterritt insofar as they suggest the Treaty Society has no authority to dispute the maps. The

 

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foundation for Mr. Sebastian’s qualified privilege defence is that because of his work with the Hereditary Chiefs, the Treaty Society and the Litigation Team, he had a duty to communicate to those bodies the perceived differences between the maps.

[30] There are other documents that one would expect Mr. Sebastian to have disclosed in light of his reliance on the defence of qualified privilege. Those include documents that disclose his duties as chair and coordinator of the Gitksan Litigation Team, and his relationship in that role to the Hereditary Chiefs and the Treaty Society.

[31] Mr. Sebastian’s reliance on the defence of fair comment requires that he demonstrate the truth of the facts on which he relied to make the impugned comments. He has disclosed negligible documentation concerning the facts on which he has based his comments, yet there is extensive documentation of the territorial boundaries that has been generated by the land claim process, and in particular treaty negotiations and the Delgamuukw litigation. Mr. Sebastian noted in one of his Affidavits that the Gitksan Library stores much of this material, including copies of Mr. Sterritt’s research material. He clearly has ready access to the library and its holdings. Mr. Sebastian must surely rely on historical

 

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documentation to support his claim that Mr. Sterritt developed maps and other documents that had the effect of removing territory from the Skii K’m lax ha and giving it to the Gitanyow. In his Affidavit, he does not suggest that he reviewed the Library’s holdings in an effort to find relevant documents on which he has based his claim. Indeed, in his submissions to the Court, he advised that he has not reviewed those holdings because he had made it his practice to refrain from doing so.

Positions of the Parties

[32] Mr. Sebastian acknowledged that the Scotnicki memorandum and the series of reports authored by him as Executive Director of the Treaty Society are relevant and ought to have been disclosed. He told the Court he did not, until now, understand the relevance to the defamation action of documents such as his reports. He said that he now appreciates their relevance, and will endeavour to produce them.

[33] Mr. Sebastian also argued that Mr. Sterritt has suffered no prejudice. Although the trial was until recently scheduled to proceed on May 3, 2004 for four weeks, the parties have now agreed on an expedited trial. Although the proceedings continue to be governed by the Rules of Court concerning discovery of documents, under the agreed expedited process the

 

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trial will be conducted on the basis of affidavit and documentary evidence. Mr. Sebastian argued that in the event any new documents are produced by him before trial, they will be appended to affidavits that must be filed thirty days in advance, which will give Mr. Sterritt time to review them. Finally, Mr. Sebastian argued that if he does attempt to rely at trial on previously undisclosed documents, it is open to Mr. Sterritt to apply under Rule 26(14) to restrict or prevent their use.

[34] Mr. Sterritt argued that while he is not required to show prejudice to succeed on his application, he has in fact suffered significant prejudice. First, the trial, while now expedited in nature, cannot proceed when originally scheduled because of Mr. Sebastian’s failure to disclose documents despite repeated requests. Second, he still does not know the case he must meet. Third, he has been put to great expense. His counsel has had to send dozens of letters, prepare and bring motions, and conduct a two-day examination on Affidavits of Documents in order to obtain what is still grossly inadequate disclosure.

[35] Mr. Sterritt submitted that at the heart of his application to strike the defence is not only Mr. Sebastian’s demonstrated failure to properly discharge his pre-trial

 

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production obligations, significant though that failure has been. The primary basis for the application is Mr. Sebastian’s express acknowledgment that he has deliberately refrained from searching for documents that may be relevant to his defence of the defamation action for reasons relating to the broader land claim litigation and treaty negotiations. In the result, Mr. Sterritt said he cannot know whether Mr. Sebastian will disclose additional documents on the eve of trial, and, worse yet, cannot be satisfied that he will ever provide full disclosure.

Legal Principles

[36] A predominant purpose of disclosure of documents as provided by Rule 26 of the Rules of Court is to permit the parties to know the case they must meet and thereby promote the resolution of disputes on the merits. In Homalco Indian Band v. British Columbia, [1998] B.C.J. No. 2102 (S.C.), Madam Justice Lynn Smith said at para. 17: What is the underlying purpose of Rule 26? An examination of its terms and of the authorities considering it leads to the conclusion that its purpose is to promote the resolution of disputes on the merits by forcing disclosure in advance of all documents upon which a party plans to rely at trial and, in addition, all documents which may assist the other party at trial….In this manner, Rule 26 avoids surprise and prevents the destruction, suppression or fabrication of evidence. The end is trial on the basis of full information; the means is disclosure of documents. The delivery of the list of

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documents in turn is a means toward the end of disclosure….

[37] Relevant documents include those that relate to the matters in question in the action which contain information that might directly or indirectly enable a party to advance his or her own case or damage the case of an opposing party (Boxer v. Reesor, [1983] B.C.J. No. 1492 (S.C. [In Chambers]).

[38] The purpose of an Affidavit of Documents is to require the party producing it to make every reasonable effort to reveal the existence of all relevant documents that are or have been in its possession. The Affidavit should provide particulars regarding the extent of the search for relevant documents to enable the opposite party and the court to decide whether all appropriate steps have been taken to locate relevant documents (Privest Properties Ltd. v. Foundation Co. of Canada Ltd., [1991] B.C.J. No. 2630 (S.C. [In Chambers]).

[39] In the Homolca case (supra), Smith J. cited with approval the decision of Dorchak v. Krupka (1997), 196 A.R. 81 (C.A.), in which the Court described a central objective of an affidavit of documents: An affidavit of documents must show unambiguously what documents’ existence it does or does not disclose. It must remove any uncertainly on the following vital question: If a piece of paper turns up later, or is

 

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tendered on a motion or at trial, has it been disclosed by the previous affidavit of documents?

[40] Where a party is ordered to provide an affidavit verifying its list of documents, that party bears the onus of proving that its disclosure is complete. The onus is not on the party seeking production to prove that the disclosure is incomplete (HYDC Holdings Ltd. (Trustee of) v. Chu, [1993] B.C.J. No. 88 (S.C. [In Chambers]).

[41] Given the fundamental importance of document disclosure and Rule 26 generally to the fair and orderly resolution of disputes, it is not surprising that the Rules of Court permit the striking out of the Statement of Defence where a defendant fails to comply with its document disclosure obligations under the Rules. Rule 2(2)(d) provides as follows: (2)…where there has been a failure to comply with these rules, the court may… (d)dismiss the proceeding or strike out the statement of defence and grant judgement

[42] Rule 2(5)(d) states, in part, the following: (5) Where a person, contrary to these rules and without lawful excuse, (d) refuses or neglects to…make discovery of documents…then…

 

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(g)where the person is the defendant…the court may order the proceeding to continue as if no appearance had been entered or no defence had been filed.

[43] As the Court of Appeal of this province observed in Hauwelling v. Dowak Industries Ltd., [1980] B.C.J. No. 1276 at para. 10, the effect of invoking Rule 2(5)(d) is to deny the defendant the right to proceed to trial, and that step should not be taken unless "it is clear the defendant has refused or neglected to comply with the rules without lawful excuse".

[44] Striking a defence is a draconian measure and, in the words of Mr. Justice Harvey in Stovicek Estate v. Napier International Technologies Inc., [1996] B.C.J. No. 1460 (S.C. [In Chambers]) at para. 48, "should be used more as a last resort than as a way of sending a message to the parties involved."

[45] In this case, Mr. Sebastian has already received many messages. The plaintiff obtained an order that Mr. Sebastian provide an Affidavit of Documents. Mr. Sebastian has now provided four such affidavits and several lists of documents, none of them sufficient. The plaintiff then obtained a further order cross-examine Mr. Sebastian on the Affidavit, and conducted a two-day cross-examination. Despite these

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steps, and a great deal of correspondence, Mr. Sebastian has yet to disclose documents clearly relevant to the litigation.

[46] Mr. Sebastian has declined to search obvious sources for documents – sources within his possession or control - such as the files of the Litigation Team and the Treaty Society, which likely explains why relevant documents have not been disclosed. He relies on the defence of fair comment. In order to do so, one must assume he relies on documentation concerning the history of tribal boundaries of the Gitskan, among other First Nations, in the Nass Watershed. A great deal of such documentation has been generated as a result of the ongoing land claims litigation and negotiations. Yet Mr. Sebastian has provided a negligible amount of documentation with respect to the facts on which he claims to be commenting.

[47] Further, Mr. Sebastian has failed to produce specific documents that are or were in his possession and are clearly relevant to the claims he has made concerning Mr. Sterritt and that form the basis for the defamation action.

[48] Finally, Mr. Sebastian continues to take the position that he is not obligated to produce documents relevant to his defence that he believes are likely in the possession of the plaintiff. While he is self-represented, he is himself a lawyer with litigation experience and must understand this

 

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position is inconsistent with his obligations under the Rules of Court. He received direction to that effect from this Court earlier in the litigation.

[49] I agree with Mr. Sebastian’s submission that striking a defence is a drastic remedy. The plaintiff is, indeed, seeking the "ultimate sanction". However, if Mr. Sebastian can provide no lawful excuse for his ongoing failure to disclose documents or provide evidence of reasonable steps to obtain those documents, Mr. Sterritt is entitled to the remedy he seeks.

[50] I have reviewed all of the materials filed by the parties with respect to the plaintiff’s motion to strike the defence, and have reluctantly concluded that the failure or neglect on the part of the defendant to produce relevant documentation has been persistent and without lawful excuse. The plaintiff cannot, on the evidence, be confident that appropriate disclosure has been made or will be made in advance of trial. My conclusion is based on a review of the transcript of the cross-examination of Mr. Sebastian on his Affidavit of Documents, his failure in the face of orders and specific direction of the court to take reasonable steps to produce to the plaintiff all documents that may be relevant to the issues in the litigation, his failure disclose specific documents

 

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that are clearly relevant to the litigation, and the very inadequate disclosure to date of documents one must assume are relevant to Mr. Sebastian’s defence of fair comment and in his possession or control.

[51] In the result, Mr. Sterritt’s application to strike the Statement of Defence is allowed.

[52] Mr. Sterritt seeks special costs on this application, arguing that the defendant’s conduct in the litigation is "deserving of rebuke". He cited as authority the decision of our Court of Appeal in Bank of Credit and Commerce International (Overseas) Ltd. v. Akbar, [2001] B.C.J. No. 500.

[53] I am not prepared to order special costs against Mr. Sebastian. The striking of the Defence is rebuke enough.

[54] However, Mr. Sterritt is entitled to his costs with respect to the cross-examination of Mr. Sebastian on his Affidavit of Documents on February 2 and 3, 2004. I make that order on the basis that had Mr. Sebastian complied with his disclosure obligations the examination would not have been necessary. Further, on my view of the transcript I conclude that Mr. Sebastian’s conduct during the examination unduly prolonged it.

 

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[55] Mr. Sterritt is also entitled to his costs on this application.

Summary of Orders

[56] Mr. Sterritt is entitled to the following orders: (a) An order that the Defence of Mr. Sebastian be struck and that Mr. Sterritt be at liberty to proceed against Mr. Sebastian as though no Defence was filed; (b) An order for the costs of this application, payable

forthwith; and (c) An order for the costs of the plaintiff’s cross-examination of the defendant on his Affidavit of Documents, payable forthwith.

________________________

C. Wedge J.