What is the test for a judge to strike?

The court emphasized in Mullin v. Sherlock that when a decision to strike is made, that the motion judge must consider whether the consequence is responsive to the breach. In essence, this requires consideration of proportionality between the nature of the breach and the consequence. The court stated, at para. 47: 47 If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome. DISCUSSION