Law Times

Law Times • SePtember 1, 2014 Page 3 www.lawtimesnews.com Compliance with undertakings Judge offers guidance on a 'troublesome area of practice' By yamri Taddese Law Times Superior Court judge is urging lawyers not to rush to court with motions to compel compliance with an undertaking before attempting to work it out with opposing counsel. In Cuff v. Gales, Justice David Price noted undertakings are a "troublesome area of practice" but emphasized that co-opera- tion among lawyers will help. Be- fore bringing a motion to compel compliance with unmet under- takings, lawyers should have a "thoughtful conversation," he wrote in his Aug. 15 reasons. e judge was dealing with the cost order in such a motion, one he found to be premature af- ter one lawyer brought it against the opposite party just a month aer an initial communication about meeting a number of un- dertakings in a personal injury matter. "Most motions to dismiss actions for non-compliance with undertakings can be avoided by proper management of files in lawyers' offices and thoughtful communication between law- yers," wrote Price. In Cuff, when a student at lawyer Darrell March's office e- mailed opposing counsel Louis Coté to say they'd be bringing a motion to compel to compliance with several undertakings, Coté was "predictably defensive," noted Price, who said the lawyers could have first talked about what was causing the delay. Aer finding the motion in the case was premature, Price ordered both parties to cover their own costs and the plain- tiffs to respond to the unmet undertakings. e court also gave a rough timeline of when a party should take action in cases of non- compliance with an undertak- ing. Price noted a party asked to obtain documents from a non- party would send a letter to the non-party only aer receiving the transcripts of the examination, a process that takes about a month. Preparing and sending out letters could take two more weeks, he added. Lenczner Slaght Royce Smith Griffin LLP partner Nina Bom- bier says the judge's guidance is helpful. "I think the overarching point of the [judge's] decision is that counsel have to co-operate and communicate around the com- pliance of undertakings," she says. Oentimes, counsel man- age quite well without the court's intervention, but this is a case where someone "pulled the trig- ger" too soon, she adds. Toronto lawyer Ben Hanuka says the timeline the judge of- fered in this case was generous. Lawyers could speed up the pro- cess by taking their own notes of the undertakings and sending request letters right aer the ex- aminations, he says. e roughly six-week timeline is "too lenient," he adds, admitting "it's not unrealistic if both parties are passive." Bombier says parties some- times agree to too many under- takings they're unable to meet. "I think it's incumbent on counsel to be careful about the scope of undertakings given," she says. "In getting any undertaking, ensure that you can comply with it and that you're not sort of tak- ing on a fishing expedition." e court also acknowledged producing every required docu- ment could be overwhelming to the party that has given many undertakings. "e demands of an exami- nation on the party being exam- ined, that party's lawyer, and the examining lawyer, should not be underestimated, and it is increas- ingly recognized that a human being has a finite 'bandwidth' of attention and, accordingly, a limited ability to focus effectively on multiple tasks simultaneously without intolerable stress and in- tolerable error," wrote Price. "is leads to a recognition by litigants, lawyers, and the court, that it is sometimes un- realistic to expect that a party who has been examined, or his or her lawyer, will be capable of reviewing questions refused, and following up on undertak- ings given, before receiving the transcript of the examination, in which the court reporter gener- ally identifies the undertakings and refusals in a section dedi- cated to that purpose." Still, the party that has given undertakings should keep oppo- site counsel in the loop about the actions it's taking to meet them, Price noted. In Cuff, the premature mo- tion to compel compliance cre- ated distrust between counsel, according to the court. Coté felt the e-mail indicating there would be a motion to compel compli- ance was a form of harassment, according to the ruling. "Mr. Coté's characterization of Mr. March's student's corre- spondence as harassment may be overstated, but Mr. March's precipitous threat of a motion elicited a predictably defensive response and an attribution of sinister motives which, wheth- er justified or not, led to a break- down in communication which contributed to a motion being brought that may have been avoided," wrote Price. But Hanuka says although a motion to compel compliance may create distrust between counsel, "the presumption should be that each lawyer is be- ing reasonable at each instance, not the other way around." "Personal animosity or dis- trust between lawyers is counter- productive, is not in the interest of the parties or the administra- tion of justice," he adds. LT NEWS Alternative Legal Career with Practical Law Carswell, a omson Reuters Business, is looking for several talented individuals to join the Practical Law Canada team. 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SmithMcBride_LT_Aug18_14.indd 1 14-08-12 1:37 PM A The decision is a reminder 'that counsel have to co-operate and communicate around the compliance of undertakings,' says Nina Bombier.

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