Court File and Parties
COURT FILE NO.: FC-17-1246
DATE: 2020/11/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nathaniel Goodwin, Applicant, Represented by Timothy Sullivan
-and-
Kerrie Goodwin, Respondent, Represented by Deborah Bennett
BEFORE: Justice P. MacEachern
HEARD: October 30, 2020, by Zoom videoconference
E N D O R S E M E N T
- The Respondent brings a motion seeking:
a. an extension of time to file her Respondent to the Applicant's Request to Admit dated August 22, 2018;
b. that the Applicant's Requests to Admit dated September 11, 2019, and December 10, 2019, be struck because they are improper. In the alternative, she seeks an extension of time to respond.
The Applicant opposes the relief sought by the Respondent. In his factum, the Applicant takes the position that the Respondent should not be allowed an extension of time to respond or, in the alternative, that she not be allowed to withdraw her admissions.
This is a high conflict case. The matter is expected to proceed to trial in January of 2021.
I make the following findings on the evidence before me:
a. The Applicant served a Request to Admit on August 22, 2018.
b. The Respondent served a Response on September 10, 2018, refusing to admit all of the requests because she needed more time to review the voluminous material. The Response states, "I refuse to admit the following facts for the following reasons: 1 -192 The Respondent Mother requires an extension of time to respond to the Applicant Father's Request to Admit, due to the voluminous amount of material served."
c. After this Response, the Applicant did not communicate with the Respondent to advise that he agreed, or disagreed, to such an extension, or to demand a more detailed response. The Applicant did not bring a motion seeking to strike the Response, and for an order requiring the Respondent to provide a more particularized Response.
d. In May of 2019, the Respondent filed a second Response to the August 22, 2018 Request to Admit, admitting some facts and documents previously denied.
e. At the parties' settlement conference on November 20, 2019, the Respondent raised the issue of the May 2019 response being served more than 20 days after the Request to Admit and sought an extension of time. This is reflected in the Trial Scheduling Endorsement Form completed
f. In beginning her preparations for trial, the Respondent served a motion in August 2020, seeking several orders directing the trial, including the relief sought in this motion.
There was much discussion at the motion about the Respondent's request to "file" the Response. The Applicant's counsel used similar language when referencing his intention to "file" his Request to Admit. This wording is misleading because neither document is "filed" with the court[^1]. Requests to Admit provide the basis for admissions to be made. Admissions may be read into the record during the trial[^2] or for an agreed statement of facts filed in the Trial Record[^3]. Requests not admitted are not relevant and are not filed with the court unless they are the subject of a motion to compel a more particularized response or to address costs after trial.
Despite the misuse of the term "file," the substance of the dispute between the parties is clearly that the Applicant takes the position that the Respondent should be deemed to have admitted the assertions put to her in his original Request to Admit. His position is based on his argument that the Respondent should not be allowed to withdraw those deemed admissions at this time.
I disagree. The Respondent did serve a response to the Applicant's August 22, 2018 Request to Admit within 20 days. In her Response, the Respondent denied all of the assertions included in the Request to Admit. It may be that the Response was not sufficiently particular to meet the Respondent's obligations under the Rules. Her counsel acknowledges this and she filed a more detailed response in May of 2019. But even if the original Response did not meet the Respondent's obligations, it does not amount to a deemed admission.
The Respondent filed a response denying the assertions in the Request to Admit. If the Applicant wished to challenge this, he should have written to counsel advising that the Response was insufficient and demanding a proper response within a specific time frame. If the parties were unable to agree that a new response be provided, the Applicant's recourse was to bring a motion seeking an order for a “proper” response, and costs.
It may be that such a motion would also include a determination of the appropriate of the Applicant’s Request to Admit. I have concerns that the Request to Admit contains several assertions that are improperly worded. For example, some of the requests to admit appear to relate to a privileged solicitor and client communications, call for opinion, include descriptive language that raises questions of interpretation, and is argumentative. But these issues have not been presented because the Applicant did not take any of these steps.
The Applicant argues that he was not required to take any steps to address the Respondent’s inadequate Response. This is true. But the Applicant’s position that the Respondent is deemed to admit the entirety of his Request to Admit because she filed an improper response is wrong. There is no deemed admission unless the Respondent's September 10, 2018 Response is struck. Her Response has not been struck. I would not strike the Respondent's Response without providing her with a reasonable opportunity to correct it.
Requests to Admit can be an effective tool to narrow the factual issues in dispute and focus the parties. When used properly, Request to Admit assist the parties in furthering the primary objective of the Rules – to deal with cases justly, including ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in a way that is appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases. Used improperly, for example, to demand responses to assertions that are argumentative, not probative, based on opinion or privilege, or not agreeing to reasonable requests for extensions of time in response to voluminous material, Requests to Admit may be used to harass and abuse the process of the court, which should not be tolerated.
The Applicant argues that the Respondent should not be allowed to rely on her May 10, 2019, Response. This is also an incorrect assertion. Parties may make admissions at any time. They are not limited to making admissions in Response to a Request to Admit. The Applicant has used the Response form to make several admissions. She could have also made admissions through written correspondence, responses to questioning, or by amending her pleadings.
In summary:
a. The Respondent served a Response to the Applicant's August 22, 2018 Request to Admit within 20 days. That Responds was a blanket refusal to admit. She refused to admit any of the facts asserted or the authenticity of the 116 documents attached.
b. In May of 2019, the Respondent made admissions concerning several facts and the authenticity of documents that she had previously refused to admit. The Respondent is bound by those admissions, which she is not seeking to withdraw.
c. The Respondent does not need an extension of time to respond to the Applicant's August 22, 2018 Request to Admit. She has responded. There is no deemed admission.
Even though I have not granted the relief sought by the Respondent, given the nature of the Applicant's position in this motion, I find that it was reasonable for Respondent to bring this motion to determine the issue of whether there has been a deemed admission in advance of trial.
There are also issues raised by the two other Requests to Admit served by the Applicant on November 11, 2019, and December 12, 2019. The Respondent did not file a response to these Requests to Admit because she considered them improper. I agree. For example, the Requests seek admissions about what took place at a settlement conference, which is improper. In the context of this high conflict matter and the evidence before me, including the concerns I raise regarding the Applicant's original Request to Admit, I find the Applicant's second and third Requests to Admit are improper, an abuse of process, and are hereby struck. There are, therefore, no deemed admissions to the second and third Requests to Admit.
Costs
- If the parties are unable to agree on this motion's costs, the Respondent may file submissions concerning costs on or before November 9, 2020. The Applicant may file submissions concerning costs on or before November 16, 2020. Both parties' cost submissions shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Dated: October 30, 2020 __________________
Justice P. MacEachern
[^1]: Family Law Rules, Rule 22 [^2]: For convenience, the court may allow admissions to be “read-in” by filing a document setting out the admissions, but Requests not admitted would not form part of such a document [^3]: Family Law Rules, Rule 23