One of the most powerful yet under utilized litigation tool is the Notice to Admit.
Civil Rule 7-7(14) reads in part:
(1) In an action in which a response to civil claim has been filed, a party of record may, by service of a notice to admit in Form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of a document specified in the notice.
The Civil Rule 7-7(2) speaks to the effect of a notice to admit and provides that:
(2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in a notice to admit is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement that
(a) specifically denies the truth of the fact or the authenticity of the document,
(b) sets out in detail the reasons why the party cannot make the admission, or
(c) states that the refusal to admit the truth of the fact or the authenticity of the document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets out in detail the reasons for the refusal.
Civil Rule 7-7(4) provides that the court may order a party who unreasonably refuses to admit a fact, pay the costs associated with the proof of those facts which the party unreasonably refused to admit. If a responding party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document specified in a notice to admit, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court considers appropriate.
In the present case, at paras. 4-29 of the notice to admit, the defendants have provided a boilerplate refusal which reads; “Refuse to make admission. The circumstances surrounding the dealing of the parties are outlined in the pleadings filed by the defendants. This is a triable issue and cannot be dealt with by way of admissions.”
In Ceperkovic v. MacDonald, 2016 BCSC 939, Madam Justice Dillon discusses the purpose of a notice to admit at para. 30, where she says: I
The purposes of the notice to admit are multiple. The primary purpose is to “save both the Court and litigants the time and expense involved in proving the authenticity of documents or in proving facts” (Clarke v. Minister of National Revenue (2000), 189 F.T.R. 76 at para. 43, [2000] F.C.J. No. 475). The rule is intended to eliminate issues altogether from a case or to facilitate proof of issues that cannot be eliminated (Garry D. Watson & Derek McKay, eds., Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1993) (looseleaf updated 2014, release 1) vol. 5 at 51§7 (Holmested and Watson)). Thus, the notice to admit can isolate important factors from a strategic and cost efficient perspective [citation]. It enables the parties to “prepare for an efficient trial focused on what is disputed” (Orlan Karigan & Associate Ltd. v. Hoffman (2000), 2000 CanLII 22725 (ON SC), 52 O.R. (3d) 235 at para. 21 (Sup. Ct. J.)). The notice to admit obviates the necessity and expense of calling evidence at trial (Canada Southern Petroleum v. Amoco Canada Petroleum (1994), 1994 CanLII 9096 (AB KB), 168 A.R. 126 at para. 16 (Q.B.)). Ultimately, it is a means to foster the timely adjudication of a claim on its merits (Furgiuele v. Don Casselman Global Enterprises, 2013 ONSC 7032 at para. 44 (Furgiuele)).
The decision canvasses the factors enumerated in Civil Rule 7‑7(2) and discusses some of the valid refusals for admitting a fact; namely, that the requested fact is privileged, that the party simply does not have the information necessary to answer it, or that the requested admission is somehow improper, or a veiled attempt to obtain particulars or ensure compliance with discovery obligations. The court also states, at para. 35, that the notice might be overly repetitious, overly broad, in the nature of argument, or vague.
At para. 38, she summarizes that:
[38] …the failure to admit the truth of a fact may be unreasonable within the meaning of [the rule] if:
(a) the truth of the fact is subsequently proved;
(b) the fact was relevant to a material issue …;
(c) the fact was not subject to privilege;
(d) the notice to admit was not otherwise improper;
(e) the notice to admit was reasonably capable of evaluation within the time required for response; and
(f) the refusing party had no reasonable grounds for believing that it would prevail on the matter.
