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Featured Case: Zuk v Atkinson

Answer Undertakings in a Timely Fashion
or Your Case May Be Dismissed!!

Frank DelGiudice
Frank DelGiudice,
Partner

Frank DelGiudice
Mark Borgo,
Student-at-Law

June 2016

by Frank DelGiudice and Mark Borgo

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 which lawyers frequently resist to answer undertakings unless “pressed by the other side with [...] motions that are threatened or motions that are brought.”2Justice 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 decisions.

Zuk v. Atkinson, 2014 ONSC 4090

Zuk v. Atkinson, 2015 ONCA 96


1 Zuk v Atkinson, 2014 ONSC 4090, OJ No 3297.
2 Ibid at para 46.
3 Ibid.
4 Zuk v Atkinson, 2015 ONCA 96, OJ No 635.


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