Compel Answers to Undertakings in Cross-Examination

In Ontario civil litigation, lawyers are familiar with motions to compel answers to undertakings following examinations for discovery in an action. Applications, however, proceed differently. They are typically determined on affidavit evidence rather than the full discovery process.

Despite this difference, courts in Ontario can still compel answers to undertakings arising during cross-examinations on affidavits in an application or motion. Understanding when such undertakings are appropriate—and when the court will compel answers—is important for litigators seeking to properly test affidavit evidence.

This article reviews the governing rules and case law on when a court may compel answers to undertakings in an application proceeding.

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The Discovery Framework in Ontario Actions

Under the Ontario Rules of Civil Procedure, actions include a structured discovery process that requires parties to disclose relevant documents and answer questions under oath.

Some key rules which apply and should be reviewed, are:

• Rule 31.06 – Scope of Examination for Discovery
• Rule 34.15 – Refusal or Failure to Answer Questions
• Rule 39.02 – Cross-Examination on Affidavits

Where a party refuses to answer proper questions on discovery, the court may intervene. Rule 34.15(1) allows the court to order a witness to answer proper questions and, in some cases, impose significant consequences such as striking pleadings or evidence.

Applications, however, do not usually involve examinations for discovery. Instead, they proceed primarily on affidavit evidence.

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Cross-Examinations on Affidavits in Applications

Rule 39.02 permits an adverse party to cross-examine a deponent who has sworn an affidavit used on a motion or application.

The purpose of these cross-examinations is narrower than discovery in an action. Rather than broadly exploring all relevant issues, the cross-examination is typically aimed at:

• clarifying the evidence contained in the affidavit
• testing the credibility of the deponent
• obtaining limited factual clarification necessary for the court to determine the application

The distinction between examinations for discovery and cross-examinations on affidavits was considered by the court in Ontario v Rothmans Inc. (2011 ONSC 2504).

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When Courts Will Compel Answers to Undertakings in an Application

Even within the narrower scope of affidavit cross-examinations, undertakings may arise where a deponent cannot immediately answer a proper question.

Courts may compel answers to undertakings where the question falls within the proper scope of the cross-examination and the requested information is reasonably obtainable.

The framework governing these questions was summarized in Huitema v Longarini (2024 ONSC 4561), which relied on Rothmans.

1. Questions Must Be Relevant to the Application or Affidavit

Questions must relate to one of the following:

• the issues on the motion or application
• matters raised by the deponent in their affidavit
• the credibility and reliability of the deponent’s evidence

Where the question falls within one of these categories, it may be considered a proper question.

2. Issues Raised by the Deponent Open the Door

If a deponent raises a topic in their affidavit, opposing counsel is entitled to cross-examine on that issue—even if it might otherwise be irrelevant to the application itself.

In practical terms, the affidavit often defines the scope of permissible questioning.

3. Courts May Compel Answers to Undertakings for Readily Available Information

A court may compel answers to undertakings where the requested information:

• is readily available to the deponent, or
• can be obtained without undue burden.

This ensures that the cross-examination process remains efficient while still allowing parties to obtain relevant evidence.

4. Undertakings May Be Requested During Cross-Examinations

There is no prohibition against requesting undertakings during a cross-examination on an affidavit. The Rules recognize that undertakings can arise during both examinations for discovery and cross-examinations of affiants.

5. Information Given on Information and Belief May Justify Undertakings

Where a deponent gives evidence based on information and belief, the opposing party may seek an undertaking requiring the deponent to obtain and provide the underlying information.

This is particularly common in application proceedings, where affidavits often rely on second-hand information.

6. Voluntary Undertakings Must Be Answered

If a deponent voluntarily provides an undertaking during cross-examination, the undertaking must be fulfilled. Once given, it becomes part of the evidentiary process and may be enforced by the court.

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Motions to Compel Answers to Undertakings

Where a deponent refuses to answer a proper undertaking or fails to fulfill one, the examining party may bring a motion seeking an order to compel answers to undertakings.

In deciding whether to grant such relief, the court will typically consider:

• whether the question was proper and relevant
• whether the issue arises from the affidavit evidence
• whether the information sought is readily available
• whether obtaining the information would be unduly burdensome

If the undertaking is appropriate, the court may order that it be answered.

In more serious circumstances, the court may also strike portions of the affidavit where a deponent refuses to answer proper questions.

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Practical Guidance for Litigators

Because applications lack the full discovery process available in actions, cross-examinations on affidavits are often the only opportunity to test the opposing evidence before the hearing.

Requests to compel answers to undertakings can therefore play an important role in ensuring procedural fairness.

However, courts are careful to ensure that applications do not become substitute discovery processes. Undertakings will generally only be compelled where they relate directly to:

• the issues raised in the affidavit
• the credibility of the deponent
• information reasonably required to determine the application

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Final Thoughts

Although applications do not involve the same discovery process as actions, courts in Ontario retain the authority to compel answers to undertakings arising during cross-examinations on affidavits.

The decisions in Ontario v Rothmans Inc. and Huitema v Longarini confirm that undertakings may properly be compelled where the questions relate to the affidavit evidence, the credibility of the affiant, or information that is readily available and necessary for the fair determination of the application.

For litigators involved in application proceedings, understanding when courts will compel answers to undertakings can be an important strategic tool in testing affidavit evidence before the hearing.