Court Examines “Best Efforts” to Answer Undertakings

In Stephens v. Creative Mechanical et al, 2022 ONSC 955, the court considered whether the plaintiffs made “best efforts” to answer undertakings. The case involves the building of a house. The defendants are contractors. The plaintiffs undertook to make best efforts to locate two subcontractors and to provide will-say statements.

The attempts made by the plaintiffs to locate the subcontractors included calling telephone numbers on invoices (which were out of order), attempting to call telephone numbers found on the Internet, and conducting searches on LinkedIn. These attempts were unsuccessful.

The defendants argued that the plaintiffs should have “cold-called” other contractors in the area to attempt to determine the whereabouts of the two subcontractors. Justice Varpio did not agree that the plaintiffs had to take this step.

Parties have to make a real and substantial effort to answer undertakings. Justice Varpio indicated that “best efforts” does not require “every conceivable effort”.