COURT FILE NO.: CV-21-00004196-0000 DATE: 2023 08 09
SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6
RE: ALEXANDRA TANG, 2505006 ONTARIO CORPORATION and 2510516 ONTARIO LTD, Plaintiffs
AND: XPERT CREDIT CONTROL SOLUTIONS INC. aka RIGHT CHOICE BUILDERS INC., SAM JOSHI aka SANJIVE JOSHI, SHAN MANGAL, PYRAMID PROPERTIES MANAGEMENT & CONSTRUCTION INC., 2748236 ONTARIO INC., SHAYNA DALLAS aka SHAYNA KASH aka SHANYA LAURENT aka SHAYNA LAUREN ELIZABETH DALLAS, 2697909 ONTARIO INC., BHALLA AJIT, GURPAL SINGH, Defendants
BEFORE: Justice L. RICCHETTI
COUNSEL: JARVIS, A., for the Plaintiffs, Alexandra Tang, 2505006 Ontario Corporation and 2510516 Ontario Ltd; T HOMAS, J. , for the Defendants, Shan Mangal, 2748236 Ontario Inc. and Pyramid Properties and Construction Inc. ; CHHINA, S., for the Defendants, 2697909 Ontario Inc. and Shayna Dallas; RANDHAWA, K., for Defendant, Gurpal Singh ; PRICE, A.S., for Sahra Hanna also known as Sarha Hanna; and SMILEY, P. Agent for D. Bourassa, for the Defendants, Xpert Credits Control Solutions Inc., Xpert Credit Control and Sam Joshi.
HEARD: July 24, 2023, by video conference
ENDORSEMENT
THE MOTION
[1] This motion dated April 6, 2022, by Shayna Dallas (“Dallas”) and 2697909 Ontario Inc. (“269 Ont.”) (jointly referred to as the “Dallas Defendants”) is to withdraw deemed admissions arising from the failure to respond to a Request to Admit from the Plaintiffs.
[2] This motion dated April 6, 2022, by Shan Mangal, Pyramid Properties Management & Construction Inc. 2748236 Ontario Inc. and Gurpal Singh (jointly referred to as the “Mangal Defendants”) is to withdraw deemed admissions arising from the failure to respond to a Request to Admit from the Plaintiffs.
POSITION OF THE MOVING PARTIES
[3] The submissions were brief:
a) The failure to respond to the Request to Admit was due to counsel’s inadvertence;
b) Unless the admissions are permitted to be withdrawn, there will be prejudice to Dallas/269 Ont.; and
c) The interests of justice favour granting the motion.
THE LAW
[4] The granting of leave to withdraw an admission is a discretionary remedy. See Phillips v. Disney, 2018 ONSC 1021 at para. 11.
[5] The case law has established a three-part test for a party requesting leave to withdraw an admission in a pleading. In determining whether the grant leave, the court considers whether the moving party has established:
a) that the proposed amendment raises a triable issue;
b) that the admission was inadvertent or resulted from wrong instructions; and
c) that the withdrawal will not result in any prejudice that cannot be compensated for in costs:
See Antipas v. Corneos, 1988 CarswellOnt 358 (Ont. H.C.), at para. 14; 147619 Canada Inc. v. Chartrand, 2006 CarswellOnt 2879 (Ont. C.A.), at para. 1; Waxman v. Waxman, 2004 CarswellOnt 1715 (Ont. C.A.), at para. 478.
[6] The moving party has the onus to establish that it is just the moving defendants be granted leave to withdraw the deemed admissions. R. 51.06 (1).
[7] In determining whether the proposed withdrawn admission the court must engage, in a very limited way, to determine the merits of the withdrawal (see Phillips supra):
[24] Having said that, where admissions have been made and a party decides, partway through the litigation, to take a different tack, my view is that something more is required than that the moving party simply establish the legal viability of the proposed amendment. Admissions are significant. Parties rely on them and may well organize their cases around them. Sometimes parties seek to withdraw them for entirely valid reasons. Other times not.
[25] I conclude that the requirement to demonstrate a “triable issue” requires the moving party to demonstrate that the proposed amendments raise an arguable case on the merits. This test is similar to the threshold a party must meet when they seek to set aside a default judgment: see Akagi v. Synergy Group (2000) Inc., 2010 ONSC 4836 at para. 14. In the result, where a party seeks to resile from admissions previously made, the court will be required to engage in a limited review of the merits to determine whether an arguable case exists.
[26] Said another, perhaps more colloquial way, the motions judge will have to determine whether the proposed amendments are meritorious, or whether they are nothing more than a tactical move that will tend to hinder, delay or frustrate the course of justice.
(Emphasis added).
THE FACTS AND DISCUSSION
Background
[8] The central allegation, relevant to this motion, is that Ms. Dallas/269 Ont. and Mr. Mangal/274 Ont./Pyramid conspired to convert/defraud the Plaintiffs from their interest in 1073 Westmount Ave, Mississauga (Property).
[9] The Mangal Defendants and the Dallas Defendants assert that the sale of the Property was a bona fide Power of Sale transaction. The validity and bona fides of the Power of Sale proceedings and their subsequent dealings with the Property is one of the central issues in this action.
[10] The Mangal Defendants sold the Property via a Power of Sale (from a mortgage it acquired from the Defendant Xpert). Specifically, on November 3, 2020, 274 Ont. entered into an agreement to sell the Property for $700,000 to 269 Ont. of the Dallas Defendants.
[11] The sale transaction closed on December 23, 2020. 274 Ont. took back a vendor take back mortgage for $695,000 (face value) with a net advance of $640,000.
[12] On December 31, 2020, 269 Ont. obtained a loan from Bhalla Ajit in the amount of $424,000 with a net advance of $394,954. This loan was secured on title to the Property.
[13] On April 12, 2021, 274 Ont. VTB mortgage was assigned the Defendant Singh for $695,000. On April 12, 2021, Singh loaned to 269 Ont. $500,000.
[14] On April 13, Ajit discharged his loan.
The Alleged fraud/ defence
[15] The Plaintiffs allege that the Dallas Defendants and the Mangal Defendants conspired/defrauded the Plaintiffs from their ownership interest in the Property. The allegations include:
a) The Plaintiffs were never given proper and valid notice of the Power of Sale Proceeding; and
b) The Property was sold at below market value.
[16] In particular, the 274 Ont. Notice of Sale was sent out in September 2020 but was later amended in November 2020 to correct an error. It is alleged the Plaintiffs were not give notice of this amended or new Notice of Sale.
[17] The Mangal Defendants allege that the Property was validly sold under a properly and lawfully effected Power of Sale and that the sale to the Dallas Defendants was a bona fide transaction for value.
[18] The Dallas Defendants allege that the Property was purchased in a bona fide purchase transaction for value without notice of any defect in the Power of Sale proceeding.
A related proceeding (the Anand Action)
[19] Linda Anand issued a Statement of Claim (CV-21-1352) as against Shan Mangal, Shayna Dallas and 2697909 Ontario Inc. The Anand claim seeks damages arising from the failed loan that was to be given from Ms. Anand to the Dallas Defendants relating to the Property.
[20] At paragraph 8 of the Statement of Defence filed by the Dallas Defendants, assert:
The Property [the same Property] was appraised at a valuation of $ 870,000, with 269 and Dallas requiring 75% - 80 % of this valuation to be provided as a mortgage. The Plaintiff advised that she would be able to provide a principal sum of $ 675,000, which amounted to 78% of the valuation.
[21] Of particular note, counsel for the Dallas Defendants (the purchasers of the Property in the Power of Sale) in the Anand Action was Mr. K. Randhawa, the same counsel who acted for the Mangal Defendants (the vendors of the Property in the Power of Sale) in this action until a short time ago.
[22] When Mr. Randhawa was cross-examined on this motion regarding the admissions made in the Anand Action, essentially all questions regarding the Anand admission were refused.
[23] The Anand Action has yet to go to trial.
The Request to Admit in this Action
[24] On January 20, 2022, the Plaintiff’s served a Request to Admit on the Defendants.
[25] There is no dispute that the Defendants received the Request to Admit.
[26] There are 21 factual paragraphs in the Request to Admit.
Whether the Plaintiffs received the Amended Notice of Sale:
[27] Some portions of the Request to Admit deal with the amended November Notice of Power of Sale and whether the Plaintiffs had been given notice of the amended or new Notice of Power of Sale (paras. 8,9, 10 and 12). When cross examined on this issue, Mr. Randhawa refused to answer questions regarding who was served on the basis:
(a) The November Notice of Sale speaks for itself;
(b) The question is irrelevant; and
(c) The question was improper.
The Value of the Property:
[28] On the issue of the value of the Property, the Request to Admit states:
Para. 5. In December of 2020 Ms. Dallas on behalf of 269 Inc. sought financing from Linda Anand based on an evaluation of the Westmount Property being equal to or greater than $860,000.00.
Para. 11. The only written appraisal Ms. Dallas had in December of 2020 had a minimum appraised value of $860,000.00.
Para. 14. The value of the Westmount Property at the date of this request to admit is equal to or greater than $860,000.00. At Tab 1 The July 29th, 2020 Westmount Appraisal, addressed to Pyramid Properties Management and Construction Inc., is attached. Stating that the valuation as vacant land is $860,000.00.
[29] There is a relatively contemporaneous appraisal of the Property to support the $860,000 valuation. It is also consistent with the position taken by the Mangal and Dallas Defendants in the Anand Action.
Authority of Ms. Dallas regarding the transactions:
[30] Ms. Dallas executed documents affecting title on behalf of 2500506 Ont., one of the Plaintiffs in this action. This is clearly evidenced in the registrations on title to the Property.
[31] It is also important to note that Ms. Dallas also executed, at least one document, on behalf of 274 Ont. the seller of the subject property, while she was the principal of 269 Ont., the buyer of the property.
[32] To date there has been no explanation by Ms. Dallas as to the basis for her authority to execute documents on behalf of 250 Ont. or 274 Ont.
[33] Nor is this issue dealt with at all by any of the moving Defendants in this motion.
The Failure to Respond to the Request to Admit is Identified on February 23, 2023
[34] Mr. Chhina, acting for the Dallas Defendants, did not respond to the Request to Admit.
[35] Mr. Randhawa, acting for the Mangal Defendants, did not respond to the Request to Admit.
The February 23, 3023 Motion before J. Daley
[36] On February 23, 2023, this proceeding came before J. Daley on a different motion (motion to register a CPL).
[37] The fact that the Dallas Defendants (the then registered owners of the Property) did not respond to the Request to Admit and were then deemed admissions, was specifically raised by J. Daley during submissions. The failure to respond to the Request to Admit was specifically addressed at para. 9 of J. Daley’s reasons found at Tang v. Xpert Credit Control Solutions Inc., 2022 ONSC 1493.
[38] Mr. Randhawa, for the Mangal Defendants, was present at the CPL motion before J. Daley.
[39] I have no doubt that, as of February 23, 2022, the moving defendants knew of the obligation to bring a motion to withdraw the deemed admissions.
March 23, 2022 Plaintiffs’ R. 20 Motion
[40] On March 23, 2022, the Plaintiffs brought a R. 20 summary judgment motion relying upon the deemed admissions in the Request to Admit (see R. 51.05(2)), seeking, among other things:
a) An Order determining that the Defendant 2697909 Ontario Inc. (“269 Inc.”) is NOT a “bona fide purchaser for value without notice”; and
b) An Order striking the relevant portions of the Defence of 269 Inc. wherein the Defendants, 269 Inc. and Ms. Dallas assert to be a “bona fide purchaser for value without notice”.
[41] This motion was scheduled to be heard on April 19, 2022.
Delay in Bringing the Motion
[42] Despite the fact that the issue and consequences of not responding to the Request to Admit were known to the moving defendants, no later than February 23, 2022, these motions to set aside the deemed admissions were not brought until April 6, 2023.
[43] There were amendments to pleadings in February 2023.
[44] A few days before the April 19, 2022 hearing of the Plaintiff’s motion, the moving defendants faced with a motion which highlighted the consequences of ignoring the Request to Admit and failing to take steps to rectify the situation, the moving parties brought this motion to withdraw their deemed admissions.
[45] Obviously, this delayed the Plaintiffs’ motion, now for more than a year until this motion to withdraw the deemed undertakings was dealt with.
Delays in Hearing this Motion
[46] Initially, the deponents, Mr. Chhina and Mr. Randhawa refused to attend cross-examinations. Eventually, they agreed to a cross-examination but unilaterally imposed a 60-minute limit.
[47] On the cross-examinations, many questions were refused by Mr. Randhawa and Mr. Chhina.
[48] Essentially, the position on the cross examination was that Mr. Randhawa and Mr. Chhina alleged inadvertence, and all questions whether they were instructed to respond, what the client requested them to respond, when the client instructed the motion to withdraw the deemed admissions were irrelevant and refused.
[49] The difficulty in dealing with the issues of valuation and what the client’s position was on the facts set out in the Request to Admit can be demonstrated by the following exchange during the examination of Mr. Randhawa on April 13, 2022:
Q. And I put it to you, Mr. Randhawa, that you received instructions from Shayna Dallas, your client in CV-21-1352, to assert that in her statement of defence that the valuation of the property was appraised at 870, 870,000 for the Westmount property. MR. ROBSON: Refused on the basis of privilege. REFUSAL NO. 6: To answer whether he 24 received instructions from Shayna Dallas to assert that in her statement of defence that the valuation of the property was appraised at 870,000 for the 2 Westmount property MR. JARVIS: It's in a statement of 4 defence. BY MR. JARVIS: 11. Q. Okay. Mr. Randhawa, did Ms. Dallas authorize the filing of the statement of defence in CV-21-1352? 9 A. Mr. Jarvis, as I stated, I'll be responding to questions to what's in my affidavit that I provided. That's not part of it. Furthermore, I think there's an issue of relevance.
Q. Well, aren't you asserting that your clients did not mean or intend to admit that the valuation of the Westmount property was equal to or greater than 860? Wasn't that -- your affidavit is asserting they did not intend to admit to that? MR. ROBSON: What paragraph in the affidavit are you referring to, counsel? MR. JARVIS: I'm referring to the matters put in issue on the motion, Mr. Robson. The assertion put forward is, that but for the omission by Mr. Randhawa, there was no intention by these defendants to admit to the facts in the request to admit.
MR. ROBSON: Counsel, you're -- we're here for a cross-examination on the affidavit and, as you know, we have not waived privilege. It's very difficult to answer questions that are not specifically related to the interpretation or clarification of statements in the affidavit. Furthermore, I would put on the record that I don't think that this cross-examination is in any way helpful to the court in determining the issues on the -- on the motion.
MR. JARVIS: So I'm not providing full responses and engagement with your objections to ... so far counsel because of the 55-minute time constraint that's been imposed on me for these cross examinations, but quite frankly I disagree with your assessments. There has been a waiver of privilege. These clients, these defendants have put in issue before this honourable court that but for the omission of Mr. Randhawa, they wanted to respond to this; therefore, any communications between solicitor and client on the instructions to respond to the request to admit, privilege has in effect been waived. But on the last question about whether the motion has been filed, am I to -- am I to infer or assume based on your refusal that these clients of Mr. Randhawa have not authorized the motion record for the withdrawing of the admissions?
MR. ROBSON: You're not entitled to assume anything, counsel, and I think that what we should do given the diametrically opposed positions that we have, that we should perhaps seek instructions from the motions judge without, you know, wasting any further time because you're just going to have the same rejections on the same basis for the balance of 20 your 55 minutes or whatever number of minutes it is now.
[50] A similar exchange occurred during the cross examination of Mr. Chhina. Essentially, Mr. Chhina:
a) Refused to answer questions of discussions with his client or Mr. Randhawa relating to the Request to Admit including when he received the instructions to bring the motion to withdraw the deemed admission.
b) Refused to answer questions regarding the valuation of the Property or discussions with counsel for another party relating to the Request to Admit.
c) Refused to admit the admission in the Anand Action that the valuation of the Property was $870,000.
MR. JARVIS: It goes to the admission of the valuation of Westmount. In the Anand action, Ms. Dallas is admitting that the valuation of property is 870, yet on April 19th she's going before the court and saying my admission that the valuation of the 18 property is 860 was accidental.
MR. ROBSON: Counsel, I don't see the 20 relevancy to the issues before the motion judge.
The Refusals Motion
[51] The Plaintiffs had to bring a motion to require them to answer refused question. A further delay occurred until the refusal motion could be heard.
[52] That motion was heard July 8 and September 12, 2022 by J. Trimble.
[53] Mr. Randhawa was ordered to provide the date upon which he received instructions to respond to the Request to Admit.
[54] Mr. Chhina was required to answer:
a) Correspondence/details of communications of communications with his clients by providing only the date of communications;
b) The clients instruction to Respond to the Request to Admit;
c) When the Request to Admit was provided to Dallas; and
d) The date Dallas instructed Mr. Chhina to respond to the Request to Admit.
Mr. Chhina’s response and evidence
[55] In response to the J. Trimble Order, Mr. Chhina advised that he had received instructions on January 20, 2022 to respond to the Request to Admit. However, Mr. Chhina had advised J. Daley that he had simply “lost track” of the Request to Admit in the multitude of emails he received during that time period.
[56] The clear implication was that Mr. Chhina was aware of the need to deal with the Request to Admit but failed to do so because of other pressure.
[57] Mr. Chhina delivered an affidavit on this motion date April 6, 2022.
This was the first time in my legal career that I had come across a Request to Admit. I reviewed the document briefly and saw that it requested confirmation by the Dallas Defendants as to certain aspects of 269’s purchase of the Property. Most notably, the request to admit requests the Dallas Defendants, at paragraph 12, that the Notice of Sale under the Mortgage was never served on the plaintiffs.
I was in the middle of reviewing extensive related materials and corresponding with my client.
I decided that I would respond to the plaintiffs’ request to admit by filing my clients’ Responding Motion Materials. More particularly, I would address the issues raised in the Request to Admit in the affidavit that my client, Dallas, would be filing.
I made submissions before Justice Daley that it was my inadvertence in placing the response in the form of an affidavit rather than the form required by the Rules, that led to the absence of a response. The Dallas Defendants had always instructed me to deny the facts raised in the plaintiffs’ request to admit.
If the Dallas Defendants are not awarded the relief sought, then the case is effectively finished. This is because the deemed admissions, made by inadvertence, seemingly indicate that the Dallas Defendants have admitted that there was a defect in the power of sale proceedings, therefore they are no longer bona fide purchasers.
[58] The implication now is that Mr. Chhina didn’t lose track of the Request to Admit, but thought he had dealt with it by filing an affidavit in the CPL motion.
[59] Mr. Chhina now (in response to the refused questions ordered to be answered) states, he did deal with the Request to Admit and dealt with it promptly on the same day. Mr. Chhina advised obtained instructions from his clients to respond to the Request to Admit.
[60] I will put aside the difficulty with this response as it is clear from Ms. Dallas’ cross examination on the CPL motion, that she knew virtually nothing about the transactions at issue. So, it is unclear what instructions she could have given. See paras. 31-32 Tang v. Xpert Credit Control Solutions Inc., 2022 ONSC 1493.
[61] If Mr. Chhina had the instructions on January 20, 2022, the Form 51B could and should have been done promptly. Yet it wasn’t.
[62] Mr. Chhina provides no explanation why, when told by J. Daley on February 23, 2022 that he needed to file a Form 51B to deny facts in the Request to Admit (and this was only 4 days late of the 30 day requirement to respond) and bring a motion, nothing was done until April 6, 2022.
[63] Further, Mr. Chhina does not explain why he waited to act on his instructions from January 20, 2023 until a few days before the April 19, 2022 hearing date (which relied on the deemed admissions) before bringing this motion.
[64] Mr. Chhina does not suggest that the value of the Property is different that what was alleged in the Request to Admit.
[65] Mr. Chhina does not deal with the authority of Ms. Dallas to sign the mortgage or loan documents on behalf of the other corporations.
[66] The court cannot determine the merits of the facts sought to be withdrawn or the denial that is sought to replace them.
Mr. Randhawa’s Response and Evidence
[67] Mr. Randhawa stated in his affidavit dated April 6, 2022 that it was unclear to which Defendants the request was made to. He had filed his affidavit materials to set aside the default and did not believe a response was required (para. 20).
[68] This makes no sense since the motion to set aside the default was made on April 6, 2022 (or April 4, 2022 when a Response to Request to Admit was finally delivered by Mr. Randhawa), whereas the Request to Admit was served in January 20, 2022.
[69] Then Mr. Randhawa goes on to describe the other materials he received to suggest he was “buried” at that time. But then goes on to blame the Plaintiffs’ counsel for not advising him that Mr. Randhawa hadn’t responded to the Request to Admit.
[70] Mr. Randhawa provides no explanation why, when J. Daley said on February 23, 2022 that he needed to file a Form 51B to deny facts in the Request to Admit (and this was only 4 days late of the 30 day requirement to respond) and bring a motion, nothing was done until April 4, 2022 (a response) and April 6, 2022 (this motion).
[71] In his response to refusals ordered to be answered by J. Trimble Order, Mr. Randhawa stated that he received oral instructions to respond to the Request to admit on February 24, 2022. If Mr. Randhawa received instructions on February 24, 2022, he should have dealt with the failure to respond to the Request to Admit promptly. Yet it wasn’t.
[72] Further Mr. Randhawa does not explain why he waited until a few days before the April 19, 2022 hearing date (which relied on the deemed admissions) before bringing this motion.
[73] Mr. Randhawa does not suggest that the value of the Property is different that what was alleged in the Request to Admit.
[74] Mr. Randhawa does not deal with the revised November Notice of Power of Sale and whether it was sent to the Plaintiffs or any of them.
[75] The court cannot determine the merits of the facts to be withdrawn or the denial sought to be substituted.
ANALYSIS
[76] The moving defendants put forward only one submission, there was inadvertence by counsel and their error should not prejudice their clients.
[77] Even if I were to accept that this was inadvertence by both counsel (who happen to share office space together and according to Ms. Dallas, Mangal was the one dealing with the transactions on her behalf), the evidence by the moving defendants fails to address the other parts of the test.
[78] Even if the moving defendants’ counsel’s explanation is accepted that there was inadvertence in not responding to the Request to Admit in accordance with the Rules, there is no explanation for the delay, at least after the February 23, 2023 attendance before J. Daley, until April 4, 2023 for the Mangat Defendants and April 6, 2023 for the Dallas Defendants.
[79] The moving Defendants, only moved to set aside the deemed admissions after the importance became obvious when the Plaintiffs brought their Rule 20 motion.
[80] Let me deal with the three central issues dealt with in the Request to Admit.
Triable Issue
i) Valuation
[81] Neither moving defendant dealt with this issue at all.
[82] Neither dealt with the fact that inconsistent admissions in the two proceedings regarding the same Property, at and around the same time. The moving defendants seem to want to take the position that the Property was worth approximately $870,000 in the Anand Action while they take the position that the Property was worth $700,000 in this action because these two inconsistent positions provide support for their defences to the two separate claims.
ii) Delivery of the corrected/amended Notice of Power of Sale
[83] Again, neither moving defendant dealt with this issue at all.
iii) Authority of Ms. Dallas
[84] Again, neither moving defendant dealt with this at all.
Conclusion
[85] There is simply no basis in the evidentiary record from the moving defendants to conclude there is a triable issue with the facts sought to now be denied with respect to each of these matters contained in the Request to Admit. While the threshold to establish that there is a triable issue is low, the moving defendants have failed to meet this part of the test.
Inadvertent
[86] While the moving defendants have put forward evidence that the failure to respond to the Request to Admit was inadvertent, that evidence falls apart after February 23, 2023 when J. Daley made it clear to counsel (both were present) that they needed to deal with this.
[87] In fact, J. Daley relied on the deemed admissions to some extent determine that a CPL ought to be granted. That alone, should have alerted the moving defendants to move expeditiously. They did not.
Prejudice
[88] Without being able to assess the merits of the withdrawal of the admissions with denials, it is difficult to assess the legal prejudice to the moving defendants.
[89] As for the Plaintiffs, I will not repeat the difficulties encountered by the moving defendants in this motion or the action generally. Reference is set out in a number of court decisions in this proceeding. Suffice to say that there has been considerable delay and extensive costs incurred by the Plaintiffs. This motion alone has been outstanding for almost a year and a half, while delaying the Plaintiffs’ R. 20 motion.
[90] Pleadings were exchanged after the February 23, 2023 without any indication that the moving defendants were going to proceed to seek a withdrawal of the deemed admissions. The pleadings may have to be opened for further amendment.
[91] The costs thrown away if this motion were granted would also be very significant to all parties.
[92] There is a CPL on title, which requires urgency to deal with this action expeditiously. The land is essentially “frozen” by the CPL. Secured creditors, lenders and security are in “limbo.”
[93] I am satisfied this prejudice has been created by the moving defendants failing to respond to the Request to Admit and move expeditiously to withdraw the admissions.
Inconsistent Positions
[94] “Cases do not proceed in glorious isolation, where a litigant can assume that he can take a position in one case and a different position in another case. To permit it would be an abuse of the court's process”. See BNP Paribas v. Bartlett, 2012 ONSC 5315 at para. 34.
[95] This is particularly troubling case since the same counsel, Mr. Randhawa is advancing the inconsistent valuation positions FOR THE SAME Mangal Defendants in BOTH ACTIONS and the Dallas Defendants in the Anand Action.
Considering all the circumstances
[96] Simply having counsel say, “it was my mistake”, is, by itself, insufficient to withdraw a deemed admission.
[97] Simply saying that disputes should be decided on the merits and a lawyer’s mistake should not impact the client’s actions, is, by itself, insufficient to withdraw a deemed admission.
[98] That is all the moving defendants submit and rely on.
[99] In my view, considering all the factors the court should consider and the entire circumstances of this case, it would not be just to permit the moving defendants to withdraw the deemed admissions.
CONCLUSION
[100] The motions are dismissed.
COSTS
[101] Either party seeking costs may submit written submissions, within two weeks, limited to 3 pages PLUS any Offers and authorities.
[102] A party against whom costs are claimed, may submit responding written submissions, within two weeks, limited to 3 pages PLUS any Offers and authorities.
[103] There will be no reply submissions.
RSJ L. Ricchetti Released: August 09, 2023