In Linamar Transportation Ltd. v. Johnson ( 2014 ONSC 4415), the Ontario Superior Court and Divisional Court were called upon to consider the meaning of "best-efforts" in the context of the obligation to answer undertakings given on examination for discovery.
In Linamar, the undertakings given by one of the parties went unanswered for almost two years after the completion of examinations for discovery. The plaintiff made every effort to encourage the delinquent defendant to answer the undertakings without success. It wrote repeated letters requesting productions, arranged for a court-ordered timetable to be implemented and consented to varying the timetable to offer the defendant eight additional months to discharge his obligations. Even after bringing a motion to strike the defence for failure to answer undertakings, the plaintiff consented to multiple adjournments of the motion to give the defendant more time to comply. All of this was to no avail.
The outstanding undertakings consisted mainly of records from third parties. The delinquent defendant had written two rounds of request letters to each of the third parties seeking production of the relevant documentation. There was no evidence of any further efforts to fulfill the undertakings. On hearing the motion, Taliano J. held that two letters wasn't enough and the defendant's efforts were not sufficient to discharge the obligation to make "best efforts".
The only issue for consideration on the motion for leave to appeal was whether there was reason to doubt the correctness of Justice Taliano's determination that the delinquent Defendant did not make "best efforts" to answer the undertakings given.
In considering the meaning of "best-efforts" in the context of undertakings given on examination for discovery, the Court endorsed the view that "the word 'best' is, of course, the superlative of the adjective 'good' (good-better-best) and must be interpreted in that light." What that means, is if a party and/or counsel is not able to discover the subject of the undertaking, then it must satisfy a court that a "real and substantial effort" has been made to see out what is being requested by the other party. What amounts to a "real and substantial effort" will be different in every case. The question to ask is: what would a reasonable person conclude was a best effort, based upon the specific facts of any given case and the nature of the undertakings?
While this is not a dramatic change in the law, the decision in Linamar will be assistive to all seeking to assess whether undertakings have been complied with. It serves as a helpful reminder that the Court expects us all to do better than good - we must do our best - and be diligent in carrying out our obligation to answer undertakings given at examinations for discovery. This decision references the importance of being cautious in giving undertakings on discoveries, as the Courts will hold the parties and counsel to a high level standard of compliance.
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