In a 2014 decision, Justice Lemon of the Ontario Superior Court
of Justice upheld the decision of Wein J. to dismiss the
plaintiff's action for failure to comply with undertakings and
to pay costs.1 The issue before Lemon J. was whether or
not the material placed before Wein J. regarding outstanding
undertakings on the ex-parte motion was full, frank and fair.
Plaintiff's counsel argued that the motion materials submitted
stated there were 23 outstanding undertakings when in fact there
were only seven. At the time of the subject motion before Lemon J.
to set aside the Dismissal Order, some of the undertakings still
remained outstanding and costs ordered from previous Orders had not
We successfully argued that there was no reason why the
plaintiff could not have undertaken all possible efforts to answer
outstanding undertakings and to pay costs in accordance with the
previous Court Orders. Justice Lemon stated that all counsel are
obligated to answer undertakings in a timely fashion. In this
regard, opposing counsel should not be required to expend client
resources drafting demand letters and motion records. Similarly,
the courts should not be unduly burdened by an influx of
undertakings motions caused by a "culture" in which
lawyers frequently resist to answer undertakings unless
"pressed by the other side with [...] motions that are
threatened or motions that are brought."2 Justice
Lemon concluded by stating "that culture should come to an
end; it should not be encouraged by granting orders such as
requested in this case."3
Accordingly, Lemon J. dismissed the plaintiff's motion.
Justice Lemon's decision was upheld on appeal to the Court of
Appeal for Ontario on February 10, 2015.4 See attached
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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