Special Procedural and Ethical Requirements: The Undertaking in Damages

• Author: David A. Crerar
• Pages: 129-138

CHAPTER

9

Special

Procedural

and

Ethical

Requirements:

The

Undertaking

in

Damages

A.

THE

UNDERTAKING

IN

DAMAGES

GENERALLY

The

applicant

must

generally

provide

an

undertaking

as

to

damages

to

obtain

a

Afareva-like

order.

Royal

Bank

of

Canada

v

IV

Got

&

Associates

Electric,

1994

Can

Lil

8922

at

para

19

(Alta

QB)

Dai

vZuo,

2015

ONSC

3008

at

para

65

Most

rules

of

court

expressly

require

an

undertaking.

For

example,

the

Supreme

Court

Civil

Rules,

BC

Reg

168/2009,

nile

10-4(5)

states

that

“

an

order

for

a

pre-trial

or

interim

injunction

must

contain

the

appli



cant

’

s

undertaking

to

abide

by

any

order

that

the

court

may

make

as

to

damages.

”

The

British

Columbia

model

order

includes

the

undertakings

as

a

schedule

to

the

order,

to

be

signed

by

the

applicant.

British

Columbia

Model

Order

for

Preservation

of

Assets,

Schedule

A:

Appendix

A

Alternatively,

the

applicant

may

provide

the

undertaking

as

to

damages

in

the

affidavit

supporting

the

application.

Frederick

M

Irvine,

ed,

McLachlin

&

Taylor

British

Columbia

Court

Forms,

2d

ed

(Markham,

ON:

LexisNexis

Butterworths,

2005)

(loose-leaf

2015

revision)

15-24

at

para

9

The

undertaking

in

damages

is

to

the

court,

and

not

to

the

party

enjoined.

129