An Undertaking Decision From The Court of Appeal!

Although a fairly technical matter, the fulfillment of undertakings is often fraught with difficulty. An answer may, quite properly, be “I have looked and cannot find any substantive materials”. On the other hand, such an answer may well amount to a failure to fulfill the undertaking – much turns on what the “I have looked” consists of.

The determination of what actually is a proper effort to fulfill an undertaking is seldom considered at the Court of Appeal level. Yesterday’s decision in Willi v. Chapple, 2008 ONCA 188 is a rare exception. The decision made it clear real efforts to fulfill undertakings are to be required. The Court held:

Although the material filed provides an answer to each of the undertakings given, many of these answers are simply unhelpful or unresponsive. By way of example, several of the answers given were that the information or documents sought had already been provided, the appellant did not remember the information being requested or the appellant simply did not know what was being asked of him. In our view, taken as a whole, it is fair to say that the answers provided were not truly responsive to the undertakings given and did not demonstrate an honest attempt to obtain and provide the information and documents sought.