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News and Views — Comment on Cuff v. Gales

Cuff v. Gales |  (WestlawNext Canada)
2014 CarswellOnt 11229 |  (Westlaw Canada)
Ontario Superior Court of Justice

In Cuff v. Gales, Price J. of the Ontario Superior Court set out guidelines he hopes will adopted by parties navigating compliance with undertakings and refusals in the discovery process.   The plaintiff, during discovery, had given 25 undertakings and made one refusal.  Some but not all of these issues were resolved in discussion between the parties, although the defendant brought a motion to order compliance with the outstanding undertakings and refusal.  The Court found that although the defendant was entitled to compliance, the motion was premature.  It had been brought only a month after the defendant’s first inquiries regarding compliance, and the plaintiff had responded promptly to the initial communication.  The parties were able to agree on a consent order and the only remaining issue was costs, which the Court found each party should bear in their own right. 

Finding that the Rules of Civil Procedure did not fully articulate the standards required, Price J. set out some guidelines of his own for Ontario litigators to observe.  The guiding principles were based transparency in providing information in order to enact settlement, and civil, efficient communication between parties’ counsel to provide the relevant answers and documentation in the disclosure process.  

Price J. noted that success for motions for compliance with undertakings is rarely in doubt, and felt that such motions would rarely be necessary if counsel managed compliance efforts efficiently and took necessary steps to obtain relevant documents.  
While an examined party has a responsibility to keep track of undertakings given, it can be difficult to keep accurate records during the examination itself, and it may be unrealistic to expect that a full review of questions refused can occur until transcripts are available.  Regardless, parties should consider addressing settlement within two weeks following the examination.  Transcripts should be obtained within a month.  Generally, within a month and one-half of receiving the transcript counsel should advise the opposing party of its position regarding questions refused or taken under advisement, and begin the process of obtaining documents held by third parties.  The other side should be kept abreast of these efforts and be sent copies of request letters.  

In general, it was suggested that it will take two weeks to discuss settlement, one month to obtain a transcript, and two weeks to review the transcript and make related inquiries. Additional letters of request, if necessary, should be sent two weeks later.  If undertakings are outstanding two weeks after this point, further steps such as a dispensation from answering relevant questions should be sought. 

Price J. lastly set out four point requirements for motion records to compel compliance with undertakings through the court.  Motion records should be paginated, should list all questions asked highlighting unanswered questions and relevant transcript excerpts, and should include a Refusals and Undertakings Chart, setting out the full sequence of correspondence relating to each undertaking, as well as an affidavit identifying all relevant correspondence dealing with each undertaking at issue.  In turn, the responding motion should also be paginated and include a similar Undertakings and Refusals Chart, and an affidavit setting out the full sequence of events taken to comply with undertakings.

The Court recognized that disclosure may sometimes be delayed or withheld for tactical advantage.  Where such stratagems add extra steps to proceedings or cause delay, Price J. states that costs are an appropriate recourse.  If the judgment as a whole has a weakness, is that it gives short shrift to consequences beyond increased costs.  Only a few paragraphs of a 42 page judgment are dedicated to outlining when a case can be dismissed for a party failing to comply with undertakings.  In the case itself, of course, the parties had already agreed to consent judgment and dismissal of the action could not possibly have been at issue.  Although Price J. gives two examples of cases where cases have been dismissed for want of compliance with undertakings, judges have often been reluctant to take this route (See, for instance, King v. Belair Direct [2004 CarswellOnt 955 184 O.A.C. 189, 10 C.C.L.I. (4th) 66, 129 A.C.W.S. (3d) 471] where the Divisional Court overruled a Master’s decision to dismiss proceedings for non-compliance with undertakings.).  Further guidance on this related matter would have been valuable.    
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