J. Malette

Following a motion in which the moving party obtained only partial success, the court considered written submissions regarding costs.

The moving party had succeeded on one of three orders sought, specifically striking the responding party’s response to a request to admit, but failed on the remaining requests.

The court found that the responding party’s response to the request to admit was an improper blanket refusal that frustrated the purpose of the rule, while other relief sought by the moving party was unsuccessfully pursued.

In light of the divided success and the circumstances of the improper response, the court declined to award costs to either side.

The plaintiff brought a motion seeking to set aside a 2008 consent order dismissing the action against one defendant, alternatively seeking to estop the remaining defendant’s estate from asserting the deceased homeowner’s mental incompetence as a defence under the Occupiers’ Liability Act, and seeking to strike a response to a request to admit.

The court held that Rule 59.06(2)(a) did not justify setting aside the consent order because the alleged new facts were discoverable with reasonable diligence, the motion was brought after substantial delay, and reopening the matter would prejudice the dismissed defendant.

The court also rejected estoppel by convention, finding no ongoing shared assumption about competence after correspondence clarified the issue early in the litigation.

However, the court found that the estate’s blanket refusal to admit facts without reasons contravened Rule 51.03(3)(b).

The response to the request to admit was therefore struck and the estate was ordered to provide a proper response.