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
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
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
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
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