COURT FILE NO.: CV-20-00004643-0000
DATE: 20220121
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SIMRANJIT SINGH DHARNI v. SUKHWINDER KANDHOLA and 2621162 ONTARIO INC.
BEFORE: Van Melle J.
COUNSEL: P. Badesha, for the Plaintiff
J.P. Bannon for the Defendants
HEARD: January 18, 2022
E N D O R S E M E N T
[1] The moving parties, defendants, bring this motion for a dismissal of the plaintiff’s action as statute barred due to the passage of the limitation period based on the pleadings and deemed admissions. The defendants rely on rule 25.08 and 51.06 of the Rules of Civil Procedure.
[2] The defendants rely on deemed admissions as a result of the plaintiff’s failure to Respond to a Request to Admit.
[3] As a preliminary matter, the defendant argues that the plaintiff cannot rely upon the “amended” statement of claim appended to his affidavit, as the pleadings have not in fact been amended.
[4] By way of background the plaintiff and the defendant Sukhwinder Kandhola (“Kandhola”) are brothers-in-law. The plaintiff claims that he and Kandhola orally agreed to jointly incorporate the defendant, 261162 Ontario Inc. for the purpose of purchasing the gas station business (“the business”) located at 2236 County Road 92, Elmvale, Ontario (‘the premises”).
[5] The purchase of the business and premises occurred on March 27, 2018. The statement of claim was issued on December 14, 2020.
[6] The plaintiff claims that he contributed $451,000 to the purchase of the business and premises.
[7] Kandhola says that the plaintiff acted as an intermediary for a $150,000 loan provided by Bhang Singh Madray, but denies that the plaintiff is entitled to an interest in 2621162 Ontario Inc.
[8] The defendants bring this motion, on the basis that the limitation period started to run in March 2018 when 2621162 Ontario Inc. was incorporated and relying upon the failure to respond, prior to the initiation of this motion, to a Request to Admit.
[9] The plaintiff says that it was through counsel’s inadvertence that the Request to Admit was not responded to.
[10] The plaintiff submits that the defendants’ motion should be dismissed and that the plaintiffs be granted leave to amend pleadings to further their evidence of discoverability.
[11] The plaintiff acknowledges that the Request to Admit was served via email to his counsel on April 6, 2021. The plaintiff says that the lawyer with carriage of the file “mistakenly and bona fide forwarded the correspondence to himself rather than a law student at the firm who was assisting on this matter”.
[12] By way of email, defendants’ counsel reminded plaintiff’s counsel of the deadline for a response to the Request to Admit and unilaterally offered an extension to May 4, 2021. Plaintiff’s counsel says he did not receive the reminder email as a result of “email connectivity issues” during March and April of 2021.
[13] After the defendants initiated this motion, the Response to the Request to Admit (dated September 8, 2021) was sent by email to the defendants on September 10, 2021.
[14] The evidence demonstrates that from February 22, 2021 plaintiff’s counsel corresponded with defendants’ counsel with a view to to discussing the litigation with defendants’ counsel. There are a number of emails from plaintiff’s counsel requesting a meeting to discuss the file. There is no indication that other than the April 27th email counsel for the defendants mentioned the outstanding response to the Request to Admit.
[15] On June 2, 2022 the defendants’ counsel wrote to plaintiff’s counsel regarding the expected 51.06(2) motion to dismiss the plaintiff’s action.
[16] On September 7, 2021 plaintiff’s counsel wrote to defendants’ counsel advising that they were going to bring a motion to allow for a response to the Request to Admit. On September 8, plaintiff’s counsel wrote a letter confirming their intention to proceed with a motion to allow for a response and offering to compensate the defendants for costs associated with the defendants’ motion. Plaintiff’s counsel rejected the offer and indicated that he was going to proceed with the motion.
[17] The defendants say that even if the plaintiff were permitted to respond to the Request to Admit, the plaintiff did not plead the issue of discoverability anywhere in the Statement of Claim, nor did the plaintiff allege any facts that would suggest a discoverability issue.
[18] The defendants plead the Limitations Act, 2002, at paragraph 18 of the Statement of Defence. The plaintiff did not reply to that pleading specifically delivering only a Defence to the Counterclaim but not a Reply.
[19] Much of the defendants’ argument centres on the limitation period and when the plaintiff would have discovered the alleged breach leading to the claim. The defendants add that the proposed amendments to the Statement of Claim do not address this issue.
[20] I have reviewed the proposed reply to the Request to Admit and find that it does address the issue of discoverability. The plaintiff should have an opportunity to reply to the Request to Admit.
[21] Despite the fact that there is case law dealing with the specific issue of permitting a party to respond to a Request to Admit after the time for response has elapsed, I was not provided with any case law on this issue. In essence the plaintiff is seeking to withdraw his deemed admissions resulting from the failure to respond to the Request to Admit.
[22] In Antipas v. Coroneos, 1988 CanLII 10348 (ON SC), [1988] O.J. No. 137 (Ont. H.C.) Saunders J. held 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 withdrawal will not result in any prejudice that cannot be compensated for in costs.
[23] In reviewing the proposed response to the Request to Admit, the plaintiff does not admit the truth of certain facts. If accepted, those refusals bring into question discoverability.
[24] I accept that the failure to respond to the Request to Admit was due to inadvertence by counsel and that the withdrawal of the deemed admissions can be compensated for in costs.
[25] I make no comment on the proposed amendments to the Statement of Claim. The defendants are entitled to respond to a properly constituted motion for the amendments.
[26] I find that the defendants should have accepted the plaintiff’s proposal to pay for the defendants’ costs thrown away due to the failure to respond to the Request to Admit in a timely manner.
[27] The defendants’ motion is dismissed. An order will issue declaring the response to the Request to Admit dated September 8, 2021 to have been served on the defendants.
[28] The plaintiff seeks costs of $28,763.02. He appears to be claiming separately for costs arising from the adjournment of the motion due to lack of court resources in September. I find that the claim for costs is excessive. Over 30 hours were spent researching and yet the cases applicable to the issue before me appear to have been missed. On the other hand the defendants’ costs outline shows approximately $13,000 worth of work for the motion and the outline indicates that they would be seeking costs of $5,000 if successful. I am mindful that the motion came about due to the failure of the plaintiff to reply to the Request to Admit as he should have. Costs to the plaintiff fixed at $5,000 payable within 30 days.
Van Melle J.
DATE: January 21, 2022
COURT FILE NO.: CV-20-00004643-0000
DATE: 20220121
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SIMRANJIT SINGH DHARNI
AND
SUKHWINDER KANDHOLA and 2621162 ONTARIO INC.
BEFORE: VAN MELLE J.
COUNSEL: P. Badesha, for the Plaintiff
J.P. Bannon, for the Defendants
ENDORSEMENT
Justice Van Melle
DATE: January 21, 2022