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Civil Litigation - Admissions [R51]. Ash v. Ontario (Chief Medical Officer)
In Ash v. Ontario (Chief Medical Officer) (Ont CA, 2022) the Court of Appeal clarifies that the R51 'Request to Admit' provisions apply to trial proceedings, not to judicial review proceedings:[5] Rule 51.02(1) provides that “[a] party may at any time, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document”. Rule 51 goes on to provide that the party receiving the request must respond within 20 days, by admitting the facts or the authenticity of the documents, denying them, or refusing to admit them and providing reasons for doing so. A deemed admission arises from a failure to respond, and there can be cost consequences arising from a denial or refusal to admit if “the fact or document is subsequently proved at the hearing”: r. 51.04.
[6] Mr. Ash relies on the phrase “at any time” to argue that the request to admit process can be used even where a proceeding has reached the appellate stage. That interpretation must be rejected. In Orlan Karigan & Associate Ltd. v. Hoffman (2000), 2000 CanLII 22725 (ON SC), 52 O.R. (3d) 235 (S.C.), Juriansz J., as he then was, concluded that a request to admit is valid only if served more than 20 days before a trial. He held that a request to admit could not be validly served any later than that (such that the 20-day time for responding would continue into the trial itself) since a request to admit is a pre-trial process, not one that can be used during the trial. It follows from this reasoning that a request to admit cannot be initiated at an even later stage – the appellate stage.
[7] This interpretation comports with the language of the rule as a whole in light of its context, which makes it clear that r. 51.02 applies only before a hearing at which facts or documents that are not admitted are to be proven, that is, it only applies in the stages of the proceeding in which the factual record is still being settled. It does not apply to stages of a proceeding, such as a motion for leave to appeal, which are to be decided based on a factual record which has already been set.
[8] Rule 51 describes a process whereby proof of facts or documents may be streamlined. Its placement in the rules sheds light on when it can be resorted to, as r. 51 appears immediately before rr. 52 and 53, which are headed “Trial Procedure” and “Evidence at Trial”. Moreover, the costs consequences provided for in r. 51.04, which are an integral part of the request to admit scheme, expressly contemplate the request to admit process being undertaken before a hearing at which facts or documents may be proven. All of this strongly suggests that the process is intended for use prior to the fact determining hearing – a trial, or an application or motion for summary judgment that will determine the facts without a trial. To be sure, the process can be engaged “at any time” before that kind of a hearing – in the sense of being available in the early stages of the proceeding and not just post-discovery. But the process is one that is only available before that kind of a hearing, not after.
[9] This interpretation is also consistent with the purpose of r. 51, which is “to enable the parties to prepare for an efficient trial focused on what is disputed”: Orlan, at para. 21. Nothing suggests that its purpose is to allow a party to expand, supplement, or alter the factual record after the trial, or other initial dispositive hearing, has taken place.
[10] In this case, Mr. Ash’s application for judicial review was the forum within which to develop the factual record he contended would support the relief he requested. In the order from which he seeks leave to appeal, his application was quashed for lack of standing and an absence of facts necessary to support the claimed relief. That was the initial dispositive hearing. Any resort to the request to admit process had to take place before it, not after it. . Hilson v. Evans
In Hilson v. Evans (Div Ct, 2022) the Divisional Court considered how to handle the situation where a party issued a Request to Admit, it was not answered by the opposing party and so admissions were deemed - but then the issuing party contradicted the admissions:[73] It is a rare occurrence for a party in a civil action to give evidence that contradicts a deemed admission flowing from her own unanswered Request to Admit, and there is little authority that addresses the effect of the contradictory evidence on the deemed admission. But this very thing occurred in Jama v. Basedeo, 2020 ONSC 2922. In that case, the applicant served a Request to Admit under r, 22(2) of the Family Law Rules O. Reg. 114/99 (“FLRs”), and the respondent did not file a Response. As a result, the trial judge ruled that certain statements set out in the Request to Admit were deemed to be admitted by the respondent, and that the respondent could not lead evidence contradicting the facts set out in the statements. However, at the trial, some of the facts that were deemed to be admitted were contradicted by evidence adduced by the applicant. As a result, the trial judge decided, at para. 21, that wherever the applicant’s own evidence, either in her testimony or otherwise adduced by her, contradicted facts in her Request to Admit, he did not deem those facts to be admitted by the respondent. In those instances, he made factual determinations based on the totality of the relevant evidence.
[74] I consider the approach taken in Jama to be sound, and consistent with the Rules. Rule 51.05 permits an admission made in response to a request to admit, a deemed admission under r. 51.03 or an admission in a pleading to be withdrawn with leave of the court. In effect, that is what the trial judge did in Jama (although operating under the FLRs, which have a similar provision at r. 22(5)), and that is what the trial judge did here.
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