Glover, by her Litigation Guardian Livingstone-Glover, et al. v. Gorski et al.
[Indexed as: Glover (Litigation Guardian of) v. Gorski]
Ontario Reports
Ontario Superior Court of Justice,
Gauthier J.
October 22, 2013
118 O.R. (3d) 144 | 2013 ONSC 6578
Case Summary
Civil procedure — Admissions — Request to admit — Pro forma reply to request to admit which was intended to defeat purpose of Rule 51 being reviewable on interlocutory motion — Plaintiffs' blanket refusal to respond to requests to admit not complying with rule 51.03(3)(h) — Plaintiffs ordered to deliver responses to requests to admit that complied with rule 51.03(3)(h) — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 51.03(3)(h).
The plaintiffs in a personal injury action responded to requests to admit served by the defendants with a global refusal to admit the truth of the facts alleged on the basis that the truth or falsity of the facts was not entirely clear and called for a conclusion to be determined by the trier of fact, or that the statement of alleged facts was vague. The defendants brought a motion for an order compelling the plaintiffs to deliver more adequate responses.
Held, the motion should be granted.
A pro forma reply to a request to admit which is intended to defeat the purpose of Rule 51 of the Rules of Civil Procedure can be reviewed on an interlocutory motion. The plaintiffs' responses to the requests to admit were not in compliance with rule 51.03(3)(b). While it was possible that the truth or falsity of certain of the alleged facts was not entirely clear, that was not so for all of them. It could not be said that all of the alleged facts were vague. The alleged facts required no interpretation and did not raise issues of admissibility. The plaintiffs' blanket refusals were unresponsive to the requests to admit.
Canpotex Ltd. v. Graham, [1985] O.J. No. 1324, 5 C.P.C. (2d) 233, 33 A.C.W.S. (2d) 141 (H.C.J.); Foundation for Equal Families v. Canada (Attorney General), [1999] O.J. No. 2561, 107 O.T.C. 385, 36 C.P.C. (4th) 201, 89 A.C.W.S. (3d) 676 (S.C.J.) [Leave to appeal granted [1999] O.J. No. 3119 (S.C.J.)], appeal stayed [2000] O.J. No. 1995 (Div. Ct.)]; RSC Management Ltd. v. Cadillac Fairview Corp. (1985), [1985] O.R. (2d) 107, [1985] O.J. No. 2556, 2 C.P.C. (2d) 53, 31 A.C.W.S. (2d) 174 (S.C.), consd
Other cases referred to
Csak v. Csak, [1993] O.J. No. 141, 15 C.P.C. (3d) 124, 44 R.F.L. (3d) 255, 38 A.C.W.S. (3d) 31 (Gen. Div.)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 51, 51.02, 51.02(1), 51.03, 51.03(3)(b), 51.04
Authorities referred to
Watson, Garry D., and Craig Perkins, Holmestead and Watson: Ontario Civil Procedure, looseleaf, vol. 3 (Toronto: Carswell, 1991)
MOTION for an order compelling the plaintiffs to deliver more adequate responses to the requests to admit.
James M. Ross, for plaintiffs.
Zlatina Georgieva, for defendants Jesse J. Valyear and Waste Management of Canada Corporation.
No other parties appearing.
GAUTHIER J.: —
Overview
[1] The defendants Jesse J. Valyear and Waste Management of Canada Corporation (the "WM defendants") seek an order compelling the plaintiffs to deliver more adequate responses to the WM defendants' request to admit ("RTA"), within ten days of an order to that effect.
Facts
[2] For purposes of the motion, the facts are not in dispute. I reproduce the recitation of the facts from the moving parties' factum.
This action arises out of a pedestrian-vehicle collision (the "Incident"), on Highway 144 in the City of Greater Sudbury, Ontario, involving the minor Plaintiff Brianna Glover. Plaintiffs allege that on January 11, 2011, at approximately 7:50 a.m., Brianna Glover was crossing Highway 144 at a location that did not have a designated pedestrian crossing area. Brianna Glover had left her residence, located on the north side of Highway 144 and was crossing the road in a westerly direction.
The Plaintiffs' Statement of Claim alleges that a Waste Management Truck (the "WM Truck") was stopped on the northern side of Highway 144 and remained stopped, at all material times related to this incident. As Brianna Glover proceeded to cross Highway 144, she was struck by a truck driven by Defendant Alexandre Gorski (the "Gorski Truck").
This action was commenced by the Plaintiffs pursuant to a Statement of Claim issued on January 9, 2013. The Plaintiff Brianna Glover seeks, among other things, $1,000,000 in general and specific damages for alleged injuries she sustained as a result of the incident. The Plaintiff Jody Livingstone-Glover claims Family Law Act damages in the amount of $75,000. Plaintiffs claim that these alleged injuries and damages were caused or contributed to as a result of the negligence of the WM Defendants. Both damages and liability as to the WM Defendants are in dispute.
The WM Defendants filed a Statement of Defence, Crossclaim and Counterclaim on February 4, 2013. In their Statement of Defence, the WM Defendants deny any liability to the Plaintiffs for their alleged injuries. In their Counterclaim against Brianna Glover's parents, Jody Livingstone-Glover and Derryl Glover, the WM Defendants claim that the alleged injuries were caused or contributed to as a result of Brianna Glover's parents' negligent supervision and instruction on how to properly cross the street.
On February 13, 2013 the WM Defendants served RTA to each of the Plaintiffs, which consisted of twenty-four (24) RTA to Plaintiff Brianna Glover and twenty-nine (29) RTA to Plaintiff Jody Livingstone-Glover. Plaintiffs responded to the RTA on February 17, 2013.
Brianna Glover responded to the RTA with a global refusal "to admit the truth of the facts . . . on the basis that the truth or falsity of the facts alleged is not entirely clear, calls for a conclusion to be determined by the trier of fact or the statement of fact(s) alleged is vague."
Jody Livingstone-Glover responded to the RTA with a global refusal "to admit the truth of the facts . . . on the basis that the truth or falsity of the facts alleged is not entirely clear, calls for a conclusion to be determined by the trier of fact or the statement of fact(s) alleged is vague."
Rule 51 -- Admissions
[3] REQUEST TO ADMIT FACT OR DOCUMENT
51.02(1) 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.
(2) A copy of any document mentioned in the request to admit shall, where practicable, be served with the request, unless a copy is already in the possession of the other party.
EFFECT OF REQUEST TO ADMIT
Response Required Within Twenty Days
51.03(1) A party on whom a request to admit is served shall respond to it within twenty days after it is served by serving on the requesting party a response to request to admit (Form 51B).
Deemed Admission Where No Response
(2) Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.
Deemed Admission Unless Response Contains Denial or Reason for Refusal to Admit
(3) A party shall also be deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request, unless the party's response,
(a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or
(b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.
COSTS ON REFUSAL TO ADMIT
51.04 Where a party denies or refuses to admit the truth of a fact or the authenticity of a document after receiving a request to admit, and the fact or document is subsequently proved at the hearing, the court may take the denial or refusal into account in exercising its discretion respecting costs.
Issue
[4] Whether or not a request to admit and the response thereto can be the subject of interlocutory review. If so, should the plaintiffs be ordered to provide a further response in accordance with rule 51.03(3)(b)?
Position of the WM defendants
[5] The purpose of a RTA is to limit or narrow issues at a hearing by obtaining admissions as to facts and documents which otherwise would have to be proved. It is prudent and appropriate to utilize a RTA to focus and shorten the necessary areas for examinations for discovery and at the early stages of litigation.
[6] The reason for a refusal to admit must be related to the truth of a fact.
[7] When the reason for a refusal to admit is inappropriate, the validity of the reason for refusal can be reviewed on an interlocutory motion.
[8] The global refusals by each plaintiff are inappropriate. The RTA lists a number of brief, sequential statements of fact that would be within the personal knowledge of each plaintiff. The global refusal to admit circumvents the purpose of Rule 51.
The Plaintiff's Position
[9] According to the Rules of Civil Procedure, the only prescribed remedy resulting from improper responses to a RTA is costs consequences following a trial if the fact or document underlying the refusal and/or denial is proved at trial.
[10] There is no statutory provision which mandates judicial intervention or review of the content of responses to a RTA on an interlocutory basis.
[11] Determination of the adequacy of a response to a RTA lies solely with the trial judge in his or her discretion in awarding costs. Until that stage in a proceeding, it is up to the party served with a RTA to decide how the response should be dealt with.
[12] The plaintiffs have not received productions and disclosure from the defendants, and no discoveries have been conducted. That being the case, it would be unfair, misleading and prejudicial for the plaintiffs to be required to provide amended answers to the RTAs.
[13] The suggested facts contained in both RTAs are vague, unclear, call for ambiguous interpretation and are best left for examinations for discovery where proper context, clarification and follow-up can be afforded to the answering parties.
Analysis
[14] The fundamental approach that the Rules of Civil Procedure take regarding procedural matters is reflected in rule 1.04:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
[15] The purpose of Rule 51 of the Rules of Civil Procedure is to limit the issues in dispute between parties and to dispense with the necessity of proving facts and documents that otherwise would need to be proven. See Garry D. Watson, Q.C., and Craig Perkins, Holmestead and Watson: Ontario Civil Procedure, looseleaf, vol. 3 (Toronto: Carswell, 1991), at p. 51-7.
[16] A RTA can be served at any stage of an action. It is appropriate to utilize a RTA to focus and shorten the necessary areas for examination for discovery (Csak v. Csak, [1993] O.J. No. 141, 15 C.P.C. (3d) 124 (Gen. Div.)).
[17] A pro forma reply to a RTA which is intended to defeat the purpose of Rule 51 can be reviewed in an interlocutory motion, notwithstanding the decisions in Canpotex Ltd. v. Graham, [1985] O.J. No. 1324, 5 C.P.C. (2d) 233 (H.C.J.) and RSC Management Ltd. v. Cadillac Fairview Corp. (1985), [1985] O.R. (2d) 107, [1985] O.J. No. 2556 (S.C.), which cases have been relied upon for the proposition put forward by the plaintiffs, that a determination of the issue of compliance or non-compliance with Rule 51 is solely a matter for the trial judge in accordance with rule 51.04.
[18] Canpotex dealt with the admissibility of certain facts for which an admission was sought.
[19] In the Cadillac Fairview case, Master Peppiatt was being asked to strike out a RTA on the basis that what the party was being asked to admit was not the truth of the facts as required by rule 51.02(1), but rather an interpretation of admitted facts.
[20] He declined to do so, saying that where there is a refusal to admit, it is for the trial judge to determine whether such refusal was justified. It was in this context that he said the following:
In my view, the responsibility for determining how to deal with the request to admit rests with the party receiving it and he is to reap the reward or pay the penalty of his decision at the hands of the trial judge.
[21] Canpotex and Cadillac Fairview were considered in Foundation for Equal Families v. Canada (Attorney General), [1999] O.J. No. 2561, 36 C.P.C. (4th) 201 (S.C.J.), leave to appeal granted [1999] O.J. No. 3119 (S.C.J.), appeal stayed [2000] O.J. No. 1995 (Div. Ct.).
[22] I reproduce paras. 11, 12, 13 and 14 of that decision (S.C.J.), which are instructive:
The first issue to be addressed in this motion is the contention of the respondent that the court should not permit interlocutory attacks with respect to requests to admit but should leave the determination of any such issues to the trial judge. In this regard, the respondent refers to the decisions of Master Peppiatt in RSC Management Ltd. v. Cadillac Fairview Corp. Ltd. (1985), 51 O.R. (2d) 107 (M.C.) and of Mr. Justice A. Rosenberg in Canpotex Ltd. et al. v. Graham et al. (1985), 5 C.P.C. (2d) 233 (Ont. S.C.). In both of those cases the court held that the adequacy of the responses concerned therein should be left for determination by the trial judge. The first case dealt with the issue of the interpretation of admitted facts and the second case dealt with the issue of the admissibility of the facts sought to be admitted.
I do not quarrel with the results reached in either of those cases. In the context of those two particular cases, the issue of the appropriateness of the request and the response was clearly a matter best left for determination by the trial judge. However, I do not view either of those cases as laying down a blanket rule that it is never appropriate for a request to admit and the response thereto to be the subject of interlocutory review. The closest one might come to such a rule is the following statement in RSC Management by Master Peppiatt, at p. 111:
I think that the effect of this is that the operation of the rule is left to the discretion of the trial judge. If the denial or the refusal turns out to be wrong then, presumably all other things being equal, the cost of proving what ought to have been admitted will be ordered to be paid by the party who failed to admit them. If the denial or refusal is justified either because what was asked was irrelevant (an issue which is not raised here) or because, as Mr. Storrey submits on this motion, the request was improper, the party denying or refusing to admit will not suffer any costs consequences, and in my view, it would be within the discretion of the trial judge, although this is not specifically said in the rule, to order the party serving the request to pay some costs in compensation for requiring the opposite party to review and respond to an improper request.
In my view, however, there is a difference between objections raised as to the operation of the rule and objections raised as to the applicability or scope of the rule. While I agree that the former should generally be left to the trial judge, the latter is something which should be determined in appropriate cases as early in the proceeding as possible.
If the distinction I draw is not a correct one, then I would find myself in disagreement with the conclusions reached in the RSC Management and Canpotex cases. I fail to see why the process of delivering a request to admit and a response thereto should be immune from review by way of an interlocutory motion in appropriate cases.
[23] Like Justice Nordheimer, I conclude that it is open to the moving party to have the validity of the responses to the RTA reviewed on an interlocutory basis.
[24] The RTA to Brianna Glover sets out 24 alleged facts which this plaintiff was asked to admit. I will not reproduce all of the 24 alleged facts, but will refer to a few:
On January 11, 2011, you crossed Highway 144 at a location that did not have a designated pedestrian crossing area.
You did not make physical contact with the WM truck.
You commenced crossing Highway 144 while oncoming traffic was approaching.
You ran out in front of the Gorski Truck.
Your parents have instructed you not to cross Highway 144 at a location that did not have a designated pedestrian crossing area.
You have been disciplined by your parents for disobeying their instructions for the proper method of crossing the street.
[25] The RTA to Jody Livingstone-Glover sets out 29 alleged facts which this plaintiff was asked to admit. Again, I have selected a few of those alleged facts:
You did not see Brianna Glover crossing Highway 144 in the moments before the incident.
You never saw the WM Truck move in the final 30 seconds preceding the incident, and so you do not have personal knowledge of the WM Truck's actions during that period.
You did not see any contact between Brianna Glover and any vehicle.
You have never warned Brianna Glover of the possible dangers of crossing a street absent a designated pedestrian crossing area.
Prior to January 11, 2011, you and Brianna Glover have crossed Highway 144 at the exact location of the incident.
You saw Brianna Glover leave the house on the morning of January 11, 2011.
You did not warn Brianna Glover's brother of the possible dangers of crossing a street absent a designated pedestrian crossing area.
You have no evidence of any kind that the WM Truck may have caused or contributed to the incident.
[26] The response to the RTA was identical (save and except for the reference to the number of facts) for both plaintiffs:
Refuse to admit the truth of facts numbered 1 through 24 (for Brianna Glover), 1 through 29 (for Jody Livingstone-Glover) on the basis that the truth or falsity of the facts alleged is not entirely clear, calls for a conclusion to be determined by the trier of fact or the statement of fact(s) alleged is vague.
[27] The response to the RTA is not in compliance with the provisions of rule 51.03(3)(b). The response sets out three reasons for the refusal to admit any of the numerous alleged facts. None of the reasons is attributed to any specific fact.
[28] While it is permissible to simply deny the truth of all facts set out in a RTA, without any reason being required, that is not the case where a party refuses to admit the truth of an alleged fact.
[29] While it may be that the truth or falsity of certain of the alleged facts is not entirely clear, that is not so for ALL of them. It also cannot be said that all of the alleged facts are vague. There is nothing vague or unclear about "You did not make physical contact with the WM truck", or "You did not see Brianna Glover fall or make contact with anything during the incident."
[30] The alleged facts require no interpretation, nor do they raise issues of admissibility.
[31] The blanket refusal and the reasons offered for the refusal to admit are unresponsive to the RTA. The plaintiffs have not discharged their obligation under rule 51.03(3)(b).
[32] Accordingly, the WM defendants are entitled to an order that the plaintiffs deliver a response to the RTA in accordance with rule 51.03(3)(b).
[33] Order
(1) The responses to the requests to admit for both plaintiffs, dated February 17, 2013, are struck.
(2) The plaintiffs shall have 20 days from the date of this order to deliver a response to request to admit in accordance with rule 51.03.
[34] If counsel are unable to agree on the costs of this motion, they shall communicate with the trial coordinator, within 20 days of the date of this ruling, to set a date and time to argue costs, failing which neither party will be awarded its costs. Any costs hearing may be by way of teleconference call.
Motion granted.
End of Document