Court and Parties

Court of Appeal for Ontario Date: 2022-12-02 Docket: M53889 (M53696)

Between: Jordan Ash, Dr. Julian Northey, and Dr. Karen Northey Applicants (Moving Party)

And: Chief Medical Officer of Health of Ontario Respondent (Responding Party)

Before: Zarnett J.A. (Motion Judge)

Counsel: Jordan Ash, acting in person Michael Saad, for the responding party

Heard: November 29, 2022

Endorsement

[1] The moving party, Mr. Ash, has a pending motion (M53696) for leave to appeal to this court from an order of the Divisional Court, dated July 22, 2022, that quashed his application for judicial review. In the judicial review application, Mr. Ash had sought an order for mandamus compelling the responding party, the Chief Medical Officer of Health of Ontario (“CMOH”), to issue a directive to all public health units to permanently refrain from administering any COVID-19 vaccine to any child under the age of 12.

[2] After he commenced his motion for leave to appeal, Mr. Ash served the CMOH with a request to admit, dated October 25, 2022, under r. 51.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He then tried to file it. The registrar refused to accept the request to admit for filing on the basis that r. 51.02 does not apply on a motion for leave to appeal in this court.

[3] By this motion (M53889), Mr. Ash seeks directions that the registrar accept the request to admit for filing, and that the request, and any response that the CMOH makes to it, form part of the record before the court on the motion for leave to appeal and, if leave is granted, on a motion to expedite.

[4] The CMOH opposes Mr. Ash’s motion, essentially making the submission that r. 51.02 cannot be resorted to by Mr. Ash on a motion for leave to appeal.

[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), 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.

[11] A motion for leave to appeal proceeds on an already settled record. It is not a hearing at which facts or documents that are not admitted can subsequently be proven, in the sense referred to in r. 51. [1]

[12] In the result, the request to admit served by Mr. Ash is not valid. His motion is dismissed. This is not a case for costs.

“B. Zarnett J.A.”

Footnotes

[1] Although there is a possibility of introducing fresh evidence on a motion for leave to appeal, Mr. Ash does not contend that he is seeking to do so.