Key Points
This decision illuminates several considerations for lawyers regarding the strategic use of Requests to Admit (RTA). Firstly, the court indicates that RTAs should be employed judiciously, adding significant value to the case without being overly repetitive and should aim to clarify the issues at dispute throughout the various stages of the litigation. Secondly, the court notes that if response deadlines for RTAs are missed, one must successfully plead inadvertence to withdraw the admission, according to Rule 51.05 . The court also reaffirms the criteria for withdrawing admissions under this rule.
Interestingly, the decision suggests that if a defendant demonstrates a consistent pattern of delay during litigation, indicative of a disregard for the Rules of Civil Procedure and the Principles of Civility for Advocates, costs will not be awarded, even if the defendant prevails in their motion.
Issue
In this case, the defendant sought to strike two RTAs or withdraw the deemed admissions that resulted from failing to respond to these RTAs. The focus of these RTAs centred on establishing liability and damages.
Facts
The first RTA, consisting of 56 paragraphs, was served on April 20, 2022, to which Aviva’s then-counsel responded by denying all allegations within the stipulated 20-day period. The second RTA was served on October 27, 2022, but went unanswered due to an alleged oversight. This oversight was only discovered at the trial’s commencement on November 20, 2023. Aviva’s counsel then provided a belated response.
Following a change in legal representation in April 2023, Aviva’s new counsel maintained the denials in response to the first RTA, but noted the absence of the second RTA in the client files. The third and fourth RTAs were served on April 27, 2023, and October 25, 2023, respectively, with the latter initially being overlooked and only addressed on the first day of the trial.
These oversights led to the postponement of the initially scheduled November 2023 trial to May 2024.
The Parties’ Positions
The plaintiff argued that Aviva’s consistent failure to respond to RTAs represented a deliberate strategy to disregard procedural rules and exhaust the opposition. Aviva countered by denying deliberate misconduct, urging the court to exercise discretion to set aside the admissions on the basis that the RTAs were an abuse of process or to apply the common law test for withdrawing admissions under Rule 51.05 of the Rules of Civil Procedure.
Analysis
The four RTAs did not constitute an abuse of process.
Turning to the first aspect of the defendant’s argument, the court found that the RTAs did not constitute an abuse of process, reasoning that this conduct did not undermine adjudicative fairness nor bring the administration of justice into disrepute. However, the court critiqued the excessive and repetitious nature of the RTAs, noting they did little to clarify the disputes being litigated. Despite recognizing the plaintiff’s reactive strategy to Aviva’s non-responsiveness, the court advised against such practices.
The court withdrew the deemed admissions flowing from the non-responses to the RTAs.
The defendant also contended that if the court did not find the second and fourth RTAs to be an abuse of process, they should alternatively be withdrawn. In considering this argument, the court turned to Rule 51.05, which mandates the court’s approval for the withdrawal of an admission. The applicable test, as established in Champoux v. Jefremova, involves a detailed evaluation of the admissions. Initially, the court determines if the admissions are factual, legal, or a combination, noting that legal admissions are easier to withdraw. In the case at bar, the admissions were of fact and mixed fact and law.
The court then applies a three-part assessment. First, the court examines whether withdrawing the admission raises a triable issue about the truth of the admission. In this case, the admissions were found to be primarily factual or a mix of both fact and law. The court emphasized that if these admissions were upheld, a trial might become unnecessary as liability would be conclusively determined.
Second, the reasonableness of the explanation for the admission is assessed. The court observed varying judicial interpretations regarding whether “inadvertence” by counsel is a sufficient ground for withdrawal. It concluded that the failure to respond to the RTAs was not deliberate, noting that intentional oversight would constitute professional negligence. However, the explanations provided, particularly for the fourth RTA, were deemed inadequate. The court suggested that a more detailed explanation would have better clarified the circumstances leading to the oversight.
Finally, the court assesses whether withdrawing the admission would not cause prejudice to the opposing party that costs could not rectify. The court concluded that permitting the withdrawal of the admissions would not unfairly prejudice the plaintiff, as the trial had been rescheduled and the plaintiff had prepared their case as if liability and damages were still at issue. The court alluded that if the plaintiff had proceeded with trial preparations under the belief that these admissions would remain uncontested (and had not prepared their arguments on liability and damages), the plaintiff might have faced greater prejudice. Lastly, the court observes that the plaintiff’s counsel’s strategic silence on the Fourth RTA seemed to capitalize on the defence’s oversight, leading inadvertently to additional delays in addressing the admissions, thereby prejudicing both parties.
Order And Costs
The court ultimately ordered that the deemed admissions from the second and fourth RTAs be set aside.
On the issue of costs, the court held that the plaintiff’s argument – that the failure to respond to the RTAs was part of a larger pattern of behaviour which displayed “flagrant indifference” to the Rules of Civil Procedure and the Principles of Civility for Advocates – was reasonable and understandable. It did not accept it to be the case that Aviva had no knowledge of this pattern of behaviour, given its pervasiveness throughout the file.
Accordingly, the court noted that even though the defendant was wholly successful in its motion, each party would bear its own costs.
