Court File and Parties

COURT FILE NO.: FC-16-1046 DATE: 2022/01/07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Raymond Switzer, Applicant -and- Colleen Catherine Joan Switzer, Respondent

BEFORE: Justice D. Summers

COUNSEL: Applicant is self-represented Susan Sviergula as agent for Eric Letts, for the Respondent

HEARD: April 6, 2021

Endorsement

[1] This is the respondent, Ms. Switzer’s, motion for relief in relation to two Requests to Admit served by the applicant, Mr. Switzer. She seeks an order confirming that her Responses to a Request to Admit were served within the 20-day period allowed under the Family Law Rules, O. Reg. 114/99 (FLRs). In the alternative, she seeks permission to withdraw any deemed admissions and an extension of time to file her response.

[2] Mr. Switzer opposes the motion. He seeks to rely on the deemed admissions at the upcoming trial of the application.

[3] The first Request to Admit, dated March 10, 2020, was served by Mr. Switzer the same day. It was unsigned and consisted of over 44 pages and sought admissions for 382 facts. The respondent’s counsel regarded the document as a draft and did not respond. A year later, on March 1, 2021, Mr. Switzer served his Brief for the Trial Management Conference and attached two Requests to Admit. One was the March 10, 2020 request, only this time it was signed. On March 22, 2021, the respondent served her Response.

[4] Mr. Switzer’s second Request to Admit dated February 2, 2021 was served that day by regular mail. That Request sought admissions for 284 facts. Not surprisingly, there was considerable repetition between the two Requests to Admit. According to Ms. Switzer’s counsel, he did not receive the February Request to Admit in the mail and was not aware of it until March 1, 2021 when Mr. Switzer served his Trial Management Brief. Ms. Switzer also responded to this Request on March 22, 2021.

[5] Given that the case was listed for trial in the May 2021 sittings, I issued a brief endorsement allowing Ms. Switzer’s motion with reasons to follow.

[6] I concluded that the unsigned March 10, 2020 Request to Admit did not comply with the FLRs. Accordingly, the applicant may not rely on the deemed admission provision contained in FLRs – r. 22(4). In compliance with the rule, Ms. Switzer did respond to the signed Request to Admit, also dated March 10, 2020, within 20 days of its receipt on March 1, 2021, as required.

[7] With respect to the February 2, 2021 Request to Admit, I find that service was effective on February 8, 2021 but the Request did not come to the respondent’s attention or that of her counsel until March 1, 2021. Ms. Switzer’s Response was delivered within 20 days thereafter. She is permitted to withdraw any deemed admissions arising in the interval and the time for service of her Response to Request to Admit is extended to the date of actual service.

[8] The following reasons will explain the conclusions I have reached.

Applicable Family Law Rules

[9] Rule 22 of the Family Law Rules, supra, governs Requests to Admit. The subsections relevant to this case are:

Request to admit

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.

Response Required Within 20 days

(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.

Withdrawing admission

(5) An admission that a fact is true or that a document is genuine (whether contained in a document served in the case or resulting from subrule (4)), may be withdrawn only with the other party’s consent or with the court’s permission.

[10] Subrules 1(9), (9.1) and (9.2) are also relevant:

Reference to forms

s. 1(9) In these rules, when a form is referred to by number, the reference is to the form with that number that is described in the Table of Forms at the end of these rules and is available on the Internet through www.ontariocourtforms.on.ca.

Use of forms

(9.1) The forms authorized by these rules and set out in the Table of Forms shall be used where applicable and may be adjusted as needed to fit the situation.

Requirements for completing forms

(9.2) A party who is required by these rules to provide a form shall, subject to subrule (9.1),

(a) follow the instructions set out in the form;

(b) fully complete all portions of the form; and

(c) attach to the form any documents that the form requires.

[11] Rule 1.9 is clear. The prescribed forms shall be used and shall be fully completed as instructed by the form itself. In this way, noncompliance with a prescribed form amounts to noncompliance with the FLRs. Put another way, a noncompliant form is a breach of the rule that requires the completion of that form.

[12] Here, in relation to the first Request to Admit that was unsigned, it would be odd were Mr. Switzer able to rely upon the deeming provision in FLRs – r. 22(4), without himself having complied with the subrules of FLRs – r. 1, set out above.

[13] Mr. Switzer submits that the lack of a signature is an irregularity that should be waived. In support of this submission he points out that the Rules of Civil Procedure (RCP) do not require the use of a single, specific form nor does the civil form require a signature in any event. These submissions are not helpful. The RCP do not apply here. The FLRs are purposefully unique to the nature of family litigation. As Justice Benotto said in Frick v. Frick, 2016 ONCA 799:

[11] The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation…. They embody a philosophy peculiar to a lawsuit that involves a family.

[12] In the rare instance when a matter is not adequately covered by the family rules, the court may decide the issue with reference to the civil rules. This is contained in r. 1(7) of the family rules, which provides:

If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[14] The FLRs do cover the matter at hand very specifically.

[15] Nor would I give effect to Mr. Switzer’s submission that there is no useful or legal purpose to the signature, such that its omission should be overlooked. The party’s signature denotes that the document is final and reliable. It confirms the litigant’s awareness of the step that is being taken, and with that knowledge, the purpose and expense of the step. In relation to the noncompliant Request to Admit, the signature would attest to the litigant’s understanding of the time and expense to be incurred by the respondent in addressing the detailed request consisting of over 44 pages and 382 facts, and the potential cost consequences the litigant might face down the road in relation to his request.

[16] Many family law forms and documents require the litigant’s signature for this purpose: to bring home the knowledge of what is happening in their case and the potential costs of it to each individual litigant. The fact that Mr. Switzer is self-represented does not detract from the purpose of requiring signatures to important forms.

[17] These reasons explain my conclusion with respect to the first, noncompliant Request to Admit. I now turn to the compliant Request made in February 2021.

Exercise of Court’s Discretion under FLRs – r. 22(4)

[18] The court has judicial discretion to permit the withdrawal of a deemed admission. Several cases provide examples of factors considered in the exercise of this discretion.

[19] In Norris v. Norris, 2016 ONSC 7077, the court was asked in oral submissions for an order to extend the deadline after the Response was not delivered within the 20-day period. Justice Corthorn decided that a formal motion with supporting materials should be brought on proper notice so that the matter could be decided on a proper record. However, in so ruling, Corthorn J. referred to factors to be explored at the motion including consideration of the interests of justice, the primary objective under the FLRs – r. 2, the significance of the consequences that flow from refusing relief from the deeming provision of the rule, and any explanation for the delay.

[20] The court in Splett v. Pearo, 2011 ONSC 5329, also referred to the primary objective in declining to consider a Request to Admit or any deemed admissions arising from it. For ease of reference FLRs – r. 2(2), (3) and (4) provide:

Primary objective

(2) The primary objective of these rules is to enable the court to deal with cases justly.

Dealing with cases justly

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Duty to promote primary objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[21] The court in Splett found there was nothing to be gained by serving the Request to Admit, having regard to its contents, the timing of its delivery in relation to a pending motion date, and the additional affidavit material delivered by that party after service of the Request, stating at paras. 7 and 8:

[7] To proceed to serve an extensive Request to Admit which deals with the minute details at issue in the motion was not appropriate, cost effective or advanced the interests of this case or the motion.

[8] The Husband’s refusal to respond to the Request to Admit on a paragraph by paragraph basis was reasonable and appropriate.

[22] In Behzadi v. Goodarzy, 2016 ONSC 4140, a late-coming Response was received at trial. It was through counsel’s inadvertence that it had not been served in time. Justice Hood stated at para. 85 that, “To deny the AF the right to now serve and file the response, when it was his counsel’s admitted mistake in not serving a timely response, would be unfair to the AF and would cause him prejudice that could not be remedied.” He also noted that the respondent did not ask for an adjournment of the trial to gather additional evidence, rather was content to proceed with the trial. Accordingly, it appears there was no prejudice to the respondent in that case.

[23] Non-compensable prejudice was also considered in the civil case of Tsitsos v. Poka, 2020 ONSC 5108. The court stated at para. 43:

[43] On the third branch of the test, while the plaintiffs did for a time prepare for trial on the basis of the deemed admissions, they have known since March 2020, when this motion was brought, that the defendant was seeking to withdraw them. The plaintiffs have prepared an estimate of their costs thrown away which includes costs for having prepared for a trial that might have proceeded based on these deemed admissions before leave was sought to withdraw them. I am not aware of any other prejudice to the plaintiffs (aside from the loss of the deemed admissions themselves requiring those facts to be proven at trial). The cost prejudice is addressed later in these reasons.

[24] The court’s preference for deciding matters on their merits where delay results from an error by counsel was also noted in Tsitsos.

[25] These considerations lead me to exercise my discretion in favour of the respondent. She was not aware of the February Request to Admit until March 1, 2021. The deemed admissions, then, were inadvertent on her part. I accept, for the purpose of this motion, her counsel’s advice that he himself did not receive the February Request via the service by ordinary mail. I would not have visited any inadvertence on his part in not forwarding it to his client had he received it then, in the following circumstances.

[26] On January 5, 2021 the case was set for trial during the May sittings. At that time, the applicant was aware that the respondent was challenging the validity of the noncompliant Request to Admit. From that point forward, he had the benefit of that knowledge for purposes of his preparation. When the two rule-compliant Requests to Admit came to the respondent’s attention, she responded to both within 20 days. Some admissions were made, but there were many more denials and requests she was unable to admit, indicative of significant issues for trial. Specific to the February 2021 Request to Admit, it was served effective February 8, and the applicant had the Response on March 22. Although the applicant asserted prejudice with respect to his trial preparation and the need to prove all of the facts which he considered to have been deemed to have been admitted, those assertions alone do not amount to evidence of non-compensable prejudice or prejudice that could not have been addressed by an adjournment of the trial.

[27] For these reasons, I granted the respondent’s requested relief with respect to the February 2, 2021 Request to Admit.

Costs

[28] The respondent is the successful party and presumptively entitled to costs. In his factum, the applicant sought costs of $5,000 all inclusive, were he the successful party. This then appears to be an appropriate amount to award the respondent for her costs. That order shall issue after 30 days unless within that time I am advised that either party wishes to address the amount of costs in written submissions.

Justice D. Summers Date: January 7, 2022