Court File and Parties
Court File No.: 08-CV-350619 PD3 Date: 2014-02-25 Superior Court of Justice - Ontario
Re: Kaiser Khan, Plaintiff – AND – Diane Sinclair and Bruce Sinclair, Defendants
Before: Justice E.M. Morgan
Counsel: Kaiser Kahn, in person James Dunn, for the Defendants
Heard: February 24-25, 2014
Endorsement
[1] The Plaintiff alleges in his Statement of Claim that while crossing the street on foot he was struck by a motor vehicle driven by the Defendant, Diane Sinclair, and owned by the Defendant, Bruce Sinclair.
[2] On January 28, 2014, counsel for the Defendants served a Request to Admit on the Plaintiff. The Plaintiff concedes that the Request was sent to him at his proper address and that he received it and that he read it. He did not respond to the Request to Admit.
[3] The Defendant has moved for judgment dismissing the action prior to commencement of the jury trial, based on the unanswered Request to Admit. Rule 51.03(3) of the Rules of Civil Procedure provides that a party that fails to respond to a Request within 20 days of its service “shall be deemed…to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.”
[4] The Plaintiff is self-represented. He has advised me that he is well educated – he has a B.A. from Ryerson University – and that he understood the Request to Admit when he received it and read it.
[5] When asked why he did not respond to the Request to Admit, the Plaintiff says that he was waiting for Defendants’ counsel to give him a call to discuss it. He does not say that opposing counsel told him he would call him; rather, he says that that since opposing counsel sent him the Request to Admit he for some reason thought that opposing counsel should advise him how to respond to it. Counsel for the Defendants, understandably, does not know why the Plaintiff would look to the opposing lawyer to give him any advice.
[6] I am not concerned about whether the Plaintiff understood the document that was served on him. He has an Ontario university degree and that must mean that he is capable of understanding what he reads. I am concerned, however, that he did not understand the consequences of a failure to reply. The Request to Admit did contain the usual advisory that it must be responded to within twenty days failing which the truth of the facts contained within it will be deemed to be admitted, but the significance of a deemed admission is not readily apparent to a litigant without legal representation.
[7] I say this especially in view of the type of admissions that the Defendants seek in their Request to Admit. In addition to requesting that the Plaintiff admit the authenticity of several documents, the Defendants seek three admissions, as follows:
That the Plaintiff, Kaiser Khan, was 100% responsible for the motor vehicle/pedestrian collision that occurred on Friday, September 14, 2007 at 8:20 a.m. in the City of Toronto, the Province of Ontario, near the intersection of Aukland Road and Dundas Street west while the Plaintiff was crossing Aukland Road from the eastside to the westside.
That the Defendant, Diane Sinclair, was not negligent in the operation of her motor vehicle either at the time of the accident or before the accident occurred.
That the motor vehicle/pedestrian collision that forms the subject matter of this action occurred solely as a result of the negligence of the Plaintiff, Kaiser Khan.
[8] The Plaintiff did not move to set aside the deemed admissions. However, his expressed desire to get on with the trial indicates to me that he effectively was making such a request, if not in such precise words. That said, the deemed admissions here do not seem to satisfy the three criteria for setting aside admissions as set out in Antipas v Coroneos, 1988 CanLII 10348 (ON SC), [1988] OJ No 137: a) that the proposed change raises triable issue; b) that the failure to respond was due to inadvertence or wrong instructions; and c) that the withdrawal of the admission will not result in prejudice that cannot be compensated for in costs.
[9] While criteria 1 and 3 are satisfied – withdrawal of an admission of liability certainly raises a triable issue, and the late response can be easily compensated in costs – criteria 2 is questionable. The Plaintiff’s failure to respond was not exactly due to inadvertence. He specifically confirmed that it was not a matter of accidentally missing the deadline or anything of that nature, but rather was a conscious decision on his part, albeit one that appears to have been based on a number of misapprehensions.
[10] Nevertheless, dismissing the action because of a failure to respond to this particular Request to Admit gives me pause. All three of these paragraphs strike me as requests that go beyond admitting various facts in issue. They are more conclusory than factual, and veer into conclusions of mixed fact and law.
[11] Rule 51.02 states 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.” On a plain reading of the Rule, a Request to Admit is only available to seek an admission as to facts or the authenticity of documents, and not as to any question of law.
[12] On the other hand, a plain reading may not answer every question of interpretation. This court held in Foundation for Equal Families v Canada (Attorney General), [1999] OJ No 2561 (SCJ), that a liberal rather than a literal interpretation should be brought to bear on Rule 51.02. This approach is mandated by Rule 1.04(1), which specifically requires the Rules of Civil Procedure to be “liberally construed”.
[13] Looking at Rule 51.02 through a liberal lens, the court in Foundation permitted the use of a Request to Admit for questions of mixed fact and law – of which the question of negligence is a paradigm case. Nordheimer J. stated at para 21, that “such an interpretation of the rules regarding requests to admit also seems to me to accomplish the expressed goal of achieving the most expeditious and least expensive determination of this application on its merits.” In the Foundation case, the plaintiff was found to have properly requested that the defendant admit discrimination; that strikes me as closely parallel to the admissions in issue here.
[14] That said, the Request to Admit in Foundation was served on the Attorney General of Canada. It is one thing to expect the Crown to comprehend the legal and factual implications of the term “discrimination”; it is another thing to expect the Plaintiff here to comprehend the legal and factual implications of the term “negligence” as used in paragraphs 2 and 3 of the Request. In asking the Plaintiff to deny the Defendant’s negligence and to admit his own, the Request to Admit has been couched in legal language that typically needs to be explained to jurors. Presenting this to a self-represented litigant causes me concern for the fairness of the process.
[15] In contrast to the second two paragraphs, paragraph 1 of the Request to Admit is written in accessible language. The question of whether someone is “100% responsible” for a car accident is not difficult to comprehend; and, indeed, the Plaintiff confirmed at the hearing of the motion that he had no problem understanding it. From a lay person’s point of view, the question asks about factual responsibility in the causation sense of the term – i.e. were the Plaintiff’s own actions the cause the accident?
[16] Given that the Plaintiff was not cognizant of the extreme importance of a timely response to the Request to Admit, I postponed any ruling on the motion for a day. At the conclusion of the lunch break on the first day of trial, I asked the Plaintiff to provide me with his written response to the Request to Admit the next morning. It was made obvious to the Plaintiff at the argument of the motion that his response may determine the entire case.
[17] I then adjourned the matter until 10:00 a.m. the following day. At the same time, I instructed the jury, which had been selected but was not present for the argument of the motion, to return the next morning at 11:00 a.m.
[18] When the Plaintiff attended the following morning (i.e. this morning), he had a handwritten Response to the Request to Admit that he delivered in court to opposing counsel and submitted to me. His Response states that he “is not 100% responsible for the motor vehicle accident.” It also asserts that the Defendant, Diane Sinclair, is the party responsible for the motor vehicle accident due to her careless driving.
[19] Counsel for the Defendants has pointed out that it is for the Plaintiff to move to withdraw his deemed admissions. The Plaintiff indicated in response to this that he indeed does not want his admissions to stand. He also reiterated that he was very confused about what to do in the face of the Request to Admit, and that he simply did not realize how or when his responses had to be submitted.
[20] I will take the Plaintiff’s stated disagreement with the deemed admissions as a motion to withdraw them. I will also take his confusion as to how to respond as being akin to inadvertence, thus satisfying the second part of the three-part Antipas test. He was, of course, not justified in waiting for Defendants’ counsel to advise him on how to proceed, but under the circumstances he did not truly advert to the admissions he was otherwise deemed to have made when he failed to respond to the Request the first time around.
[21] I therefore grant leave to withdraw the admissions contained in paragraphs 1 through 3 of the Request to Admit. The documents whose authenticity were sought in the Request to Admit are deemed to be authentic. Those documents are not mentioned in the Response submitted by the Plaintiff this morning.
Morgan J.
Date: February 25, 2014