Discovery Challenges: Undertakings and Refusals Motions

Denis Grigoras

Denis is a lawyer who draws on his background in complex legal disputes and transactions to problem-solve for his clients.

If a party fails to provide satisfactory responses or declines to address valid inquiries during the discovery or cross-examination process, a motion for undertakings and refusals might be needed. This motion requests the court’s intervention to compel the party being examined to comply with their undertakings or address questions that were inappropriately refused.

Undertakings and Refusals Motions

If a party fails to provide satisfactory responses or declines to address valid inquiries during the discovery or cross-examination process, a motion for undertakings and refusals might be needed. This motion requests the court’s intervention to compel the party being examined to comply with their undertakings or address questions that were inappropriately refused. This article will cover the procedure and best practices for managing motions related to undertakings and refusals.

Understanding Undertakings, Refusals, and Questions Taken Under Advisement:

1.  Undertakings – An undertaking is given when a relevant question is asked during an examination, but the required information to respond is not available. The party being examined commits to making inquiries or conducting research to provide the answer at a later time. It’s crucial to distinguish between undertakings offered by a lawyer on behalf of their client and those provided personally. Undertakings are made on the party’s behalf, not the lawyer’s, unless explicitly agreed otherwise.

2.  Refusals – A refusal takes place when the party being examined declines to respond to an unsuitable question. Common reasons for refusal include irrelevance, privilege, oppressiveness, abusiveness, inappropriateness for the witness to address, or relating only to the witness’s credibility.

3.  Questions Taken Under Advisement – These are questions that require additional time for evaluation before deciding whether to answer. Unanswered advisements after 60 days are deemed refusals.

Getting Ready for the Undertakings and Refusals Motion:

1.  Participate in the Examination for Discovery or Cross-Examination – Ideally, the person preparing and presenting the motion should have attended the examination. If this isn’t feasible, collaborate with the examining attorney before preparing any documents.

2.  Compile a List of Undertakings, Under Advisements, and Refusals – After an examination, use the official transcript to create a list of the opposing party’s undertakings, under advisements, and refusals.

3.  Contact Opposing Counsel with the List and Request Responses – Send the list of undertakings, under advisements, and refusals to the opposing counsel, reminding them of the 60-day deadline for replies.

4.  Establish Your Record with Persistent Follow-Ups with Opposing Counsel – Your motion record should display multiple follow-ups with the opposing counsel, demonstrating the opposing party’s failure to comply with undertakings within a reasonable period or refusal to address valid inquiries.

5.  Evaluate the Motion’s Necessity and Obtain Client Instructions – When considering an undertakings and refusals motion, determine whether the outstanding responses are crucial to your client’s case. Consider the strategic benefits and expenses of the motion and examine alternatives, such as narrowing requests, gathering information from other sources, or resolving issues through case conferences.

Preparing Undertakings and Refusals Motion Documents:

1.  Request the Examination for Discovery Transcript – After receiving instructions for the motion, order the examination for discovery transcript to prepare and present the motion.

2.  Identify the Specific Inquiries You Plan to Pursue – Review refusals and decide which ones are worth pursuing by considering legal or factual matters, relevance to particular allegations, legitimacy of refusal grounds, and other factors.

3.  Draft the Notice of Motion – The Notice of Motion should contain the witness’s name, examination date, outstanding or wrongly refused undertakings/questions, unresponsiveness or noncompliance by the opposing party, and the relief sought.

4.  Draft the Supporting Affidavit(s) – In the supporting affidavit(s), include a brief case background, procedural history, examination details, correspondence with opposing counsel, evidence of your client’s completed undertakings, any inadequate responses provided thus far (if applicable), a summary of outstanding information and documents, and their relevance to the case. You may also want to attach other relevant documents or transcript excerpts to the affidavit. Ensure that all responses are enclosed in the affidavit, showing the full exchange with counsel. Make sure that the person swearing the affidavit can speak to its content. (If a non-attending clerk or assistant swears it, they may only attach exhibits.) It’s recommended that an associate or partner involved in the case do it.

5.  Attach the Pleadings – Attach the pleadings to help the court understand the nature of the case, the disputed issues, and the relevance of the questions to your client. Include pleadings as exhibits in the affidavit or separate tabs in the motion record.

6.  Use the Rule 37.10(10) Chart – Use the Ontario Courts Form 37C, Refusals and Undertakings Chart, to efficiently organize your oral argument. When bringing an undertakings and refusals motion, the moving party is required to create a chart, comprised of 6 columns (i.e., the Rule 37.10(10) Chart). The last two columns of the chart are to be left blank; one column is for the responding party’s position and the other column is for the Judge’s/Associate Judge’s disposition.

For the first column of the chart, entitled “[t]he issue … and its connection to the pleading or affidavit,” there are three steps that must be taken:

    1. The moving party should clearly define the issue at hand, as using only one or two words is insufficient. Avoid generic terms like “liability” or “damages” that are prevalent in many cases. Instead, elaborate on the specific aspects of liability or the particular types of damages involved.

    2. The moving party needs to identify the specific paragraphs in the pleadings (or affidavits, if the motion concerns a cross-examination on an affidavit) that help clarify the relevance of the requested information.

    3. The moving party needs to connect the issue and the evidence, explaining the relevance of the cited evidence to the question at hand, and how or why an answer provided may be insufficient or incomplete in addressing the question. This involves giving context to the question, rather than requesting the Associate Judge to decide on questions that were not asked. (If privilege issues arise, the party should specify the type of privilege asserted and justify the claim with supporting evidence.)

When possible, arrange the questions in the chart by related topics, allowing oral submissions to address clusters of questions rather than each individually. Assign a unique number to every question for easy reference.

In the “Specific question” section, the moving party needs to accurately transcribe the question’s exact wording from the transcript and include bracketed references to the questions surrounding the refusal to provide context.

For undertakings and refusals motions, file the transcripts or pertinent sections (and upload it to CaseLines). These sections should contain enough detail to contextualize the question and accurately depict what was asked and answered.

Once the moving party completes their part of the chart, they must serve it on the responding party, who is then responsible for filling in their section.

In the section entitled “Answer or specific grounds for refusal,” the responding party is required to either address the question or clarify why an answer was not given or why the provided response is deemed adequate (see r. 37.10(10)(b)). Once completed, the chart should be sent back to the moving party for a discussion regarding any questions that can be withdrawn or answered. Following this, a refined version of the chart is to be prepared for submission to the court.

It is essential that the final chart includes input from both parties, enabling the court to reference a single, comprehensive document.

7.  Consider Whether All or Part of the Motion Can Be Settled – Discuss with opposing counsel to resolve any questions before the motion. Demonstrate genuine efforts to conserve court resources and save client time and money. Document settlements and establish clear delivery timelines for answers. Consider formalizing agreements into consent-based court orders.

Preparing Your Arguments on the Merits:

To prepare for arguments on merits, examine pleadings and relevant transcript sections, focus on disputes regarding provided information, and prepare counterarguments for opposing counsel’s reasons. Familiarize yourself with refusals and their basis, provide references to pleadings and documents, and address proportionality when needed. Update the motion’s status, including the number of original, answered, withdrawn, and remaining disputed questions.

Arguing the Motion:

When arguing the motion in court:

  1. Brief the court on the motion’s current status and submit your updated Undertakings and Refusals Chart.

  2. Inquire if the court needs an overview of the action and disputed issues.

  3. Organize your arguments by groups, following the order in your chart, and prioritize important questions if time is limited.

  4. Obtain a clear written endorsement from the court regarding the required information/documents and a deadline for delivery.

  5. Anticipate a costs argument. The outcome of undertakings and refusals motions is often mixed, and the court will decide costs based on each party’s success. Costs are determined by comparing the number of questions ordered to be answered, settled, or withdrawn before the motion. If the moving party is more successful, costs should be awarded in its favour, and vice versa. In case of divided success, consider proposing costs paid in the cause or reserving motion costs to the trial judge.

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