- During an examination for discovery, a witness answers questions under oath about the facts and documents relevant to the case.
- " Common examples include: - Producing a document that wasn't in the original disclosure but came up during questioning - Confirming a date, an amount, or a detail the witness didn't…
- A refusal is different — it's a deliberate decision not to answer a question at all, usually because the answering party believes the question is: - Not relevant to the issues in the…
The examination for discovery is over. You answered questions for hours, your lawyer took notes on everything you couldn't answer on the spot, and now there's a follow-up list — of things you promised to look into, and things the other side flatly refused to provide. Understanding undertakings and refusals in Ontario litigation is what turns that list into progress instead of a stalemate.
Discovery doesn't end the moment the examination room empties. What happens in the weeks after often shapes how strong each side's case looks by the time it nears trial.
What Happens After an Examination for Discovery
During an examination for discovery, a witness answers questions under oath about the facts and documents relevant to the case. Not every question gets a complete answer in the room. Sometimes the witness doesn't know the answer offhand, needs to check a record, or objects to answering at all. Each of these outcomes gets tracked and dealt with differently:
- Undertakings — promises to provide an answer or document later
- Refusals — a flat refusal to answer, usually on the basis the question is objectionable
- Answers taken under advisement — the witness's lawyer wants to consider whether to object before responding
Your lawyer typically compiles these into a formal list shortly after the examination, and the other side does the same for anything you asked of them.
Undertakings: Promises to Follow Up
An undertaking is essentially a commitment: "I don't know that answer right now, but I will find out and provide it." Common examples include:
- Producing a document that wasn't in the original disclosure but came up during questioning
- Confirming a date, an amount, or a detail the witness didn't have memorized
- Checking with a business, employer, or third party for information the witness doesn't personally hold
Undertakings are meant to be fulfilled within a reasonable time, and a party who ignores them risks a motion asking the court to compel compliance.
Refusals: When a Party Won't Answer
A refusal is different — it's a deliberate decision not to answer a question at all, usually because the answering party believes the question is:
- Not relevant to the issues in the lawsuit
- Protected by privilege
- Improper in form, or seeking information the rules don't require to be disclosed
A refusal isn't automatically wrong. Parties are entitled to object to questions that go beyond what discovery is meant to cover. The disagreement only becomes a real problem if the other side thinks the refusal was improper and the question should have been answered.
Resolving Undertakings and Refusals After the Exam
Most files follow a similar path once the undertakings and refusals list is exchanged:
- Each side reviews the other's list and decides which items it accepts, which it disputes, and which need clarification.
- Lawyers typically try to resolve disagreements informally first — a phone call or letter narrowing the dispute often avoids a motion entirely.
- Outstanding undertakings get answered, usually in writing, and any documents get produced.
- If a refusal is disputed and can't be resolved between counsel, either side can bring it before the court to decide.
- The case generally can't move to the next procedural stage with unresolved discovery disputes hanging over it, so most parties have an incentive to sort these out promptly.
What If the Other Side Won't Cooperate?
When undertakings go unanswered or a refusal seems clearly improper, the next step is a motion asking a judge or associate judge to order compliance. The court can order a party to answer a question, produce a document, or attend a further examination — and an unreasonable refusal or a pattern of stalling can also affect how a court awards costs on the motion itself, since Ontario's general "loser generally contributes to the winner's costs" principle applies to motions, not just to the final result of the case.
Bringing a motion adds time and expense to a file, which is exactly why most lawyers try to resolve undertakings and refusals cooperatively before involving the court.
Frequently asked questions
How long does a party have to answer an undertaking?
There's no single fixed answer that applies to every case — it depends on the complexity of what was undertaken and any timelines the parties or the court have set for the litigation. A lawyer can advise on what's reasonable and, if needed, press for compliance.
Can I refuse to answer a question just because I don't want to?
No. A refusal needs a proper basis — typically relevance or privilege. Refusing simply because a question is uncomfortable or unfavourable to your case is not a valid ground and is likely to be ordered answered if challenged.
What happens if the other side never fulfills an undertaking?
You can follow up directly, and if that doesn't work, bring a motion asking the court to compel an answer. Persistent non-compliance can also affect how the court views that party's conduct later in the case.
Do undertakings and refusals apply in Small Claims Court too?
Small Claims Court procedure is simpler and does not involve the same formal examination-for-discovery process used in Superior Court actions. If your claim is proceeding in Small Claims Court, the discovery tools available are more limited.
This is a litigation question
Start a file online — flat, published fees, reviewed by a licensed Ontario lawyer before a dollar is owed.