Undertakings motions represent an expensive and time-consuming part of practice. Numerous hours are spent reviewing transcripts, perfecting undertakings charts, tabbing request letters, drafting motion materials, and conducting research. The status of undertakings often change day to day requiring, for example, redrafting to incorporate orders under Rule 30.10 of the Rules of Civil Procedure against unresponsive or uncooperative non-parties. Often times, the motion materials result in an amicable consent order agreed upon the motion is heard. This may leave the drafter of materials with a feeling that it was all for nothing.

When considering a motion for undertakings, consider Cuff v Gales, which is a cautionary tale in the world of document production. In that case, Justice Price wrote a lengthy detailed decision in relation to a costs award for an undertakings and refusals motion. His Honour described the history of the communications between the parties while critiquing the motions material. He also offers a “how to” on undertakings motions.

Justice Price makes it clear that success on an undertakings motion is generally a foregone conclusion, given that it is a motion to compel compliance with a professional undertaking.  However, Justice Price cautions that the “victor” can forfeit his or her right to costs pursuant to Rule 57 by acting unreasonably.

In Cuff v Gales, Justice Price presided over a simple refusals and undertakings motion.  The parties agreed to a consent order on the morning of the motion, leaving His Honour to decide costs.  Justice Price moved beyond simple failure or success to determine the appropriate cost award in the circumstances.

From a reading of the decision, it is apparent that the court was unimpressed with the conduct of both sides leading up to the motion; the materials provided to the court in support of the motion; the fact that the motion was booked less than 60 days following the defendant’s first request letter for undertakings; and the tone and language used in the correspondence exchanged between parties. Ultimately, the court awarded no costs to either party.

Justice Price ruled that the undertakings motion was premature, and that the parties should bear their own costs despite the Defendant’s technical success on the motion. This case stands for the proposition that unreasonable conduct on the part of a party could lead to forfeiture of that party’s right to costs (in this case, the Defendant had involved the court prematurely).

Suggested Timelines for Counsel

Justice Price acknowledged that the Rules do not offer a comprehensive guide to undertakings motions. He offered the following timeline that he would expect counsel to implement:

  • Examinations for Discovery – undertakings given
  • Transcripts received within 30 days of discovery
  • Transcripts reviewed within two weeks of receipt
  • Letter to counsel by the examined party outlining their position with respect to any refusals or questions taken under advisement given at discovery
  • Request letters to non-parties should be sent at that time – and opposing counsel should be kept abreast of developments
  • A second request letter to the opposing party should be sent shortly thereafter – and the party in receipt of such letter should keep opposing counsel abreast of developments

As the court pointed out, a premature undertakings motion does not offer enough time for the responding party to order transcripts, verify undertakings, and make initial requests.

On the subject of supporting materials for such a motion, Justice Price offered the following guidelines:

            Moving materials

  • The materials should be paginated
  • Charts should be up-to-date, and should outline all requests made, citing the transcript for page and question numbers with an explanation of relevance to the pleadings
  • A supporting Affidavit identifying all relevant correspondence in relation to each undertaking

Responding materials

  • The materials should be paginated
  • A similar undertakings and refusals chart should be included
  • An Affidavit should be provided outlining a chronology of all attempts to satisfy the party’s undertakings.

Evidently, Cuff v Gales is an important decision for review in preparation for any undertakings or costs motion. Failure to abide by the principles outlined in this decision could lead to the denial of costs to a successful litigant or, conversely, it could lead to a higher level of costs being awarded against the unsuccessful litigant.