Featured Case: Zuk v Atkinson - Answer Undertakings In A Timely Fashion Or Your Case May Be Dismissed!!
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 been paid.
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...
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