Silani Sweet Cheese Limited v. Aviva Insurance Company of Canada, 2018 ONSC 6214
Court File and Parties
COURT FILE NO.: CV-17-00571504 MOTION HEARD: 20181017 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Silani Sweet Cheese Limited, Plaintiff AND: Aviva Insurance Company of Canada, Intact Insurance Company, Amec Geomatrix Limited, Amec Foster Wheeler Americas Limited / Amex Foster Wheeler Ameriques Limitee, Amec Foster Wheeler Environment & Infrastructure a division of Amec Foster Wheeler Americas Limited / Amec Foster Wheeler Ameriques Limitee, ITT Corporation also known as ITT LLC, ITT Industries Inc., ITT Sanitaire, Xylem Inc., and Wellington Construction Inc., Defendants
BEFORE: Master B. McAfee
COUNSEL: S. Turajlich, Counsel for the Plaintiff Silani Sweet Cheese Limited M. Miles, Counsel for the Defendant Aviva Insurance Company of Canada
HEARD: October 17, 2018
Reasons for Decision
[1] This is a motion brought by the plaintiff Silani Sweet Cheese Limited (the plaintiff) pursuant to Rule 51.05 of the Rules of Civil Procedure for leave to withdraw deemed admissions under Rule 51.03 and for an order extending the time to serve a response to request to admit.
[2] The defendant Aviva Insurance Company of Canada (Aviva) opposes the motion.
[3] For the reasons that follow, the motion is granted.
[4] On March 2, 2018, Aviva served the plaintiff with a request to admit.
[5] On May 23, 2018, the plaintiff served a response to request to admit. The response was not in the proper form.
[6] On May 31, 2018, counsel for Aviva advised that the response to request to admit was too late and that the plaintiff’s response did not comply with Rule 51.03(3).
[7] The parties agree that the applicable test is summarized in Docouto v. Ontario, 2000 CarswellOnt 3165 (Ont. S.C.J.) at para. 16:
- The other basis upon which the plaintiff resists the extension is that in order to grant an extension I must, in effect, permit the defendants to withdraw admissions which they are deemed to have made by the failure to respond within the twenty day time limit. The test for the withdrawal of an admission is established by the decision in Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.) which was expressly approved by the Court of Appeal in Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 (Ont.C.A.) The test as stated by Saunders J. in Antipas at p. 66 is:
A review of the cases indicates that a party requesting leave to withdraw an admission must pass three tests by establishing (1) that the proposed amendment raises a triable issue; (2) that the admission was inadvertent or resulted from wrong instructions; and (3) that the withdrawal will not result in any prejudice that cannot be compensated for in costs.
[8] I am satisfied that there is a triable issue between the plaintiff and Aviva having regard to the pleadings and in particular paragraphs 22, 23 and 26 of the statement of claim and Aviva’s statement of defence. Aviva relies in part on the report of Giffin Koerth dated September 7, 2016, and a summary of information obtained from a representative of the plaintiff contained in a report. The report was prepared on behalf of a co-defendant. The summary contained in the report of the co-defendant is not determinative of whether there is a triable issue.
[9] I am satisfied that based on the affidavit evidence of H. Tariq the failure to respond to the request to admit in a timely manner was inadvertent. At paragraphs 3 and 4 of her affidavit, Ms. Tariq states that the request to admit was received by facsimile transmission on Friday, March 2, 2018, and that as of approximately 1:30 p.m. on that same date, she made arrangements to put in place an out of office alert and commenced her holidays. She was absent from the office until March 19, 2018. The request to admit was inadvertently placed with the statement of defence of other defendants received about the same time as the request to admit and the request to admit and did not come to her attention on time.
[10] In National Utility Service (Canada) Ltd. v. Kenroc Tools Inc., 1995 CarswellOnt 346 (Ont. Gen.Div.) the following is stated at paras. 7-9:
7 Seeking leave to amend a specific judicial admission is quite different from seeking leave to withdraw an admission resulting from a solicitor’s having inadvertently failed to attend to a document. In the first situation, a party has taken a deliberate position in the action, an admission upon which the other parties are entitled to rely. In such a situation the applicant must satisfy the court that there is good reason to grant the indulgence – because it affects the legitimate responses of other parties to the specific pre-amendment admission. The same cannot be said about the position of the parties in the case at bar. No party can say that it was reasonable to expect to be able to assert a legitimate position in response to a solicitor’s inadvertence.
8 In Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 24 (Ont. C.A.), the court held that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor if relief to the client can be given on terms that protect his innocent adversary from costs thrown away and as to the security of the legal position he has gained. In the circumstances of this case where admissions have been made through inattention rather than through a deliberate act, it would clearly be contrary to this long-standing principle of our legal system to hold Kennametal Ltd. to the admissions.
9 In my view, in a case where the admission is not made deliberately but through inadvertence and has not prejudiced the other side, the admission should be set aside.
[11] As was the case in National Utility Service, in the within action the admissions were not made deliberately but through inadvertence.
[12] I am also satisfied that the withdrawal will not result in any prejudice to Aviva. Examinations for discovery have not yet taken place. I was not referred to any evidence of actual prejudice to Aviva.
[13] Leave to withdraw the deemed admissions is granted. An extension of time to serve a response to request to admit is also granted. The response to request to admit shall be in the proper form (Form 51B).
[14] I agree with Aviva that there should be no costs of this motion. The plaintiff was successful on the motion but did respond to the request to admit late and not in the proper form.
[15] Order to go as follows:
- Leave is granted to the plaintiff to withdraw the deemed admissions.
- The time to respond to the request to admit is extended to November 9, 2018. The response shall be in the proper form (Form 51B).
- There shall be no costs of this motion.