Mere failure to fulfill undertakings is insufficient to have action dismissed - prejudice must be shown

Jack v. Gowling, Strathy & Henderson, 2011 ONCA 736 deals with the test to dismiss an action because of a failure to fulfill undertakings given on discovery.  The Court accepted the mere failure to fulfill is no sufficient – actual prejudice resulting is required:

 

 

[1]              The motion judge dismissed the appellant’s action on the ground that she had failed to comply with undertakings given on discovery despite two court orders that she do so.

 

[2]              The motion judge declined to dismiss the action on non-compliance alone and held that the action could only be dismissed if the respondents were able to demonstrate that non-compliance had given rise to potential or actual prejudice.