WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: March 24, 2021

COURT FILE No.: Sault Ste. Marie File No. 231/14 - 001

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA, Applicant,

— AND —

F.M.

M.K.

C.K. (Added Party)

Respondents.

Before: Justice John Kukurin

Heard on: March 2, 2021

Evidentiary Ruling released on: March 24, 2021

Counsel:

Jennifer Mealey....................................................................... counsel for the applicant society Shad McCooeye......................................................... counsel for the respondent mother, F.M. Jasmine Gassi Harnden.................. counsel for the respondent paternal grandmother, C.K. M.K.......................................................................................... not present, although duly served Lindsay Marshall.............. Office of the Children’s Lawyer legal representative for the child

KUKURIN J.:

[1] This is a Ruling over an evidentiary issue involving Requests to Admit and Responses to Requests to Admit in this status review case.

[2] These became an issue when the society sought to introduce the Requests to Admit as part of its evidence in the case. Objections were taken by the Respondent mother as well as the Respondent paternal grandmother. In addition, the court had some concerns in terms of how these Requests to Admit were utilized by the society as well as the evidentiary consequences of this usage.

Request to Admit

[3] The Request to Admit is a litigation device whose ultimate objective seems to be to secure admissions of facts, or admissions that copies of documents are genuine. This is to conserve trial time, to expend less litigation resources, and to possibly to put pressure on an opposing litigant who may be unwilling to co-operate in creating a Statement of Agreed Facts.

[4] In the domain of family law, the Request to Admit has its genesis in the Family Law Rules, specifically Rule 22. There is a two fold thrust to the Request to Admit. The first is to admit that a fact is true. The second is to admit that a document is genuine.

[5] The Request to Admit consists of a pre-printed form (Form 22). The Response to Request to Admit is also a pre-printed form (Form 22A)

[6] The Request to Admit can be served at any time. Presumably, this is during the course of the litigation between at least two parties. The Request to Admit is limited to the purposes of the case in which the Request to Admit is served. I take from this that if a Request to Admit is served in a child protection case, any consequence of that Request to Admit does not extend to a subsequent status review case. In the domestic family sphere, the consequences of a Request to Admit served in an Application would not extend to a Motion to Change a final order that was made in the proceeding that involved the Application. In more concrete terms, an admission of a fact by way of a Request to Admit in a child protection case would not, in itself, be an admission of that same fact in a subsequent status review case. It may be a finding of fact in the prior child protection case if the trier of fact in that case stated that it was. If so, it may be a prior judicial finding of fact that a subsequent status review court may potentially rely upon.

(a) Another Party

[7] The subrule permitting the service of a Request to Admit is subrule 22(2) which states:

Rule 22 (2) At any time, by serving a request to admit (Form 22) on another party, a party may ask the other party to admit, for purposes of the case only, that a fact is true or that a document is genuine. O. Reg. 114/99, r. 22 (2).

[8] The grammatical arrangement of this subrule is of some importance. There is not one plural word in the subrule. From this, I infer that one party may serve a Request to Admit on another party. I do not interpret this to mean that a party can serve the same Request to Admit on multiple other parties.

[9] Why so picky? After all, this can be corrected by duplicating the Request to Admit and just serving it individually on the second party (or another party).

[10] Regrettably, this is not always the best solution. In the present status review case, the applicant society has served two Requests to Admit. It has served the first Request to Admit (Trial Ex. 11 dated Jan 2, 2020) on each of the mother and the paternal grandmother. It has also done so with the second Request to Admit (Trial Ex. 12 dated Jan 8, 2020). Leaving aside, for the time being, the second Request to Admit, the question that arises is whether serving two other parties with the same Request to Admit is permitted by Rule 22(2). If it is not, what remedy is available?

[11] It is difficult to describe the difficulties created by serving two parties with the same Request to Admit without some concrete examples. There were 85 ‘factual’ statements posed in the society’s first Request to Admit. It asked each party to admit that the facts set out in these 85 statements were true. Taking statement no. 36:

“On August 5, 2016 during an appointment for a Psychological Assessment the mother admitted to having used marijuana since the age of 12, she also admitted to trying cocaine, opioids and prescription drugs. Following his assessment of the mother Dr. Tan diagnosed the mother with Post Traumatic Stress Disorder ”

[12] This statement was not denied by the paternal grandmother. Nor did she refuse to admit that it was true and give a reason for her refusal. The paternal grandmother’s failure to do either has a consequence, namely that the paternal grandmother is considered to have admitted that the fact(s) in this statement is true – by virtue of Rule 22(4):

Rule 22 (4) The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,

(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or

(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal. O. Reg. 114/99, r. 22 (4).

[13] The fact that the paternal grandmother may have never met Dr. Tan, may have been totally oblivious to his diagnosis of the mother in August 2016, and may not have known anything about what the mother may have admitted to him about her drug use clearly did not prompt her to refuse to admit the truth of these facts and give a reason for that refusal. This pattern is repeated by her throughout the society’s first Request to Admit. The end result is a deemed admission by the paternal grandmother of the truth of multiple factual events about which she clearly knows nothing. The obvious question is how does this conserve any trial time or streamline the litigation process. It doesn’t. If anything, it muddies the fact finding process. Ultimately, the court must look at each fact and make a chart of whether it is a fact that only the mother admitted, only the grandmother admitted, that both admitted or that neither admitted. In many of the facts tendered in the Request to Admit, the deemed admissions will be worth from nothing to very little. In others, they will have some relevance.

[14] The society may be commended for its efficiency in saving paper, but in the end, it would be better advised to customize or tailor the facts it presents to each target litigant so that each fact firstly, is one that is relevant in the proceeding, and secondly, is one that the person to whom it is presented has sufficient knowledge of it to be able to make one of the choices set out in Rule 22(4). It should have served two Requests to Admit, one on each respondent, and each one with the facts on which admissions of truth were sought that the particular respondent had some knowledge of.

[15] Nor has the presentation of facts for admission of truth thereof in a chronological order over four years (as in the first Request to Admit of the society) much redeeming quality. While the human brain may make sense of a chronological framework of the presentation of facts, even in the context of a Request to Admit, the salient feature of the Request to Admit is the fact that a party is trying to get a fact into evidence by use of this device, and it doesn’t actually matter if the facts are in chronological order.

[16] While I concede that Rule 22(2) can be read to justify presentation on one other party or multiple other parties, I find the way the society has used it in this case to be less than desirable from a judicial point of view.

(b) The Truth of a Fact

[17] With respect to the truth of a fact, Rule 22(4) permits the person responding to a Request to Admit three options. The first is a denial that the fact is true. The second is a refusal to admit a fact is true together with a reason for the refusal to admit. The third is neither of the above, or in other words, silence. Silence with respect to a fact in a Request to Admit has the consequence that the party who responds with silence is considered to have admitted that the fact is true for purposes of the proceeding only.

[18] Rule 22(4) does not allow a party on whom a Request to Admit is served to do anything outside of these three options. He or she cannot correct or qualify a fact set out in the Request to Admit. He or she cannot say yes to part of a fact and no to another part. He or she cannot complain that the ‘fact’ presented is compound and one part may be true but another is not. The Response to Request to Admit has pre-printed parts. With respect to a fact tendered for admissions of truth, the Response to Request to Admit allows an admission of the fact, a denial of the fact, or a refusal to admit (the truth of) the fact with an explanation for the refusal.

[19] In the present case, for example, the paternal grandmother has indicated a denial of a numbered fact presented by the society. That fact is:

Fact: 62. In June 2017 the father was incarcerated in Calgary, Alberta and was later removed to Saskatchewan to face further criminal charges

[20] The grandmother not only denies that that fact is true. She corrects it.

Response: The father was arrested in Sault Ste. Marie then extradited to Calgary then incarcerated in Calgary.

[21] This gratuitous correction may seem innocuous for this relatively simple and marginally relevant fact. But it is problematic. For one thing, what does the court do with the corrected fact? Moreover, the grandmother makes gratuitous corrections or qualifications to groups of facts. At other times, the grandmother says a fact is not true and then refers to passages in one of her affidavits where she explains the “real” truth of what took place.

[22] The mother is no better. While she denies the truth of a fact, she also goes on to provide qualifications or corrections to her denial.

Fact: 54. From January 2017 to March 2017 the mother had not been attending therapy sessions regularly. The mother did not interact during the therapy sessions that the mother was attending with Dr. Schwarzenberger

Response: The mother did not consistently miss her appointments. She missed maybe three

[23] These “Responses” are in a chart that sets out “My reasons”. The reasons are reasons for refusal to admit. They are not intended for a denial of a fact. They are unnecessary.

[24] The “facts” posed by the society are also deserving of some criticism. For example, fact 69 lists nine different facts, five of which were compound (ie joined with an “and”) and therefore presented two facts each. How does one answer whether such a “fact” is true when even part of any one warrants a denial for the whole.

[25] At the end of the day, there is no sanction for denying a fact is true when it is true. Nor is there a sanction for refusal to admit a fact is true, even when it is true, so long as some reason is given. The reason apparently does not matter so long as it is given. There is no judicial ruling provision in Rule 22 that determines whether a reason for refusal to admit is sufficient, or more practically, whether the reason given should be disregarded, and the fact taken as not having been answered, therefore deemed true.

[26] The Request to Admit is only a litigation device that opens the evidentiary gate to allow entry to the “fact” that is either admitted, or not denied. This is only entry to the pool of potentially admissible evidence. However, the “fact” still has to pass other evidentiary tests to have evidentiary value. It must be relevant. It must be factual. It must be reliable. In this case, there is also the determination of against whom the fact is to be weighed.

[27] However, those are matters for the trial judge to deal in his or her ultimate decision. From the standpoint of the ruling on admissibility, it is a very easy matter. Any fact on which any denial or refusal or admit is made, regardless of who made it, does not meet the requirement that leads to a (deemed) admission of the truth of that fact for any evidentiary purpose. That fact will have to be proven to be true by the party seeking its admission into evidence in some other manner, not by way of a Request to Admit.

(c) Genuineness of a Document

[28] With respect to the genuineness of a document, if no response is received within the time allotted for a response, then the document is deemed to be genuine. Again, however, there may be the situation where one party does not contest the genuineness of a document and another does. Because at least one party contests the genuineness, a document should not be deemed to be genuine.

[29] The end result of documents which are held to be genuine pursuant to a Request to Admit remains an issue for the trial judge in the proceeding. A determination that a document is “genuine” effected pursuant to a Request to Admit has the following consequences:

Rule 22. (1) An admission that a document is genuine is an admission,

(a) if the document is said to be an original, that it was written, signed or sealed as it appears to have been;

(b) if it is said to be a copy, that it is a complete and accurate copy; and

(c) if it is said to be a copy of a document that is ordinarily sent from one person to another (for example, a letter, fax or electronic message), that it was sent as it appears to have been sent and was received by the person to whom it is addressed. O. Reg. 114/99, r. 22 (1).

[30] The genuineness of a document under Rule 22 does not make the document automatically admissible as evidence in the proceeding. However, it does not make it inadmissible either. Moreover, it does not make any statement in the text of the document a true statement from an evidentiary point of view. What inference can be made of such “genuine” documents depends on the case and on the use that a party wishes to make of it. What judicial weight is given to such document is up to the trier of fact in the case.

[31] In summary, where, in a Request to Admit, a statement of fact has been tendered as true and

(a) all parties served with that statement admit it is true, or

(b) all parties served with that statement fail to respond to it,

then that fact is considered to have been admitted by all parties on whom the Request to Admit was served.

[32] Where, in a Request to Admit, a statement of fact has been tendered as true and

(a) one party denies it is true, or

(b) one party refuses to admit it is true and provides a reason for that party’s refusal

then the fact is not considered to have been admitted as being true by either of such parties.

[33] Where, in a Request to Admit, a document is tendered as genuine and

(a) one party denies that the document is genuine, or

(b) one party refuses to admit that the document is genuine and provides a reason for the refusal,

then the document is not considered to be genuine by either of such parties.

[34] It is only where a document is tendered as “genuine” in a Request to Admit, and the party/ies on whom the Request to Admit is served admit(s) or fail(s) to respond, that renders the document “genuine” and then only for purposes of the proceeding in which the Request to Admit is served.

[35] With the foregoing preamble, the question in my mind still remains. How is each party serving a Request to Admit intending to have admitted into evidence the individual fact or the document it sets out in its Request to Admit?

Released: March 24, 2021 Signed: “Justice John Kukurin”