BARRIE COURT FILE NO.: CV-18-417-00 DATE: 20240430 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peter Neary, Plaintiff/Responding Party AND: Aviva Insurance Company of Canada, Defendant/Moving Party

BEFORE: The Honourable Madam Justice S.E. Healey

COUNSEL: Lane Foster and Kenneth Ciupka, Counsel, for the Plaintiff/Responding Party Sabrina Lucenti and Robin Moodie, as agent for Counsel, for the Defendant/Moving Party

HEARD: April 16, 2024

ENDORSEMENT

The Motion

[1] The defendant moves for an order striking two Requests to Admit delivered by the plaintiff or, in the alternative, an order withdrawing the deemed admissions arising from the two Requests to Admit, which went unanswered by the defendant.

[2] This is a motor vehicle accident claim. But for the unanswered Requests to Admit, liability and damages have been disputed since the delivery of the Statement of Defence, including whether a threshold impairment has been sustained by the plaintiff.

The Facts

[3] On April 20, 2022, the plaintiff served Aviva’s former lawyer, Mark Elkin, with a 56 paragraph Request to Admit (the “First RTA”). Mr. Elkin responded within the required 20-day period by denying all 56 paragraphs and denying the authenticity of all documents for reasons stated in the Response (the “First Response”).

[4] On October 27, 2022, the plaintiff served a second Request to Admit (the “Second RTA”). Mr. Elkin’s evidence is that the Second RTA did not come to his attention when it was served, and no response was delivered within the required 20 days. The mistake was not discovered until November 20, 2023, which was the date that the matter was called in to begin trial. It was only discovered when the plaintiff’s lawyer advised of his intention to rely on the deemed admissions. A Response was delivered that same day.

[5] Counsel, William Jesseau took over the file from Mr. Elkin in April 2023. He did not withdraw any of the denials in the First Response. He states that the Second RTA was not included in the file when it was handed over to him from Mr. Elkin’s firm.

[6] On or about April 27, 2023 the plaintiff served a third (undated) Request to Admit (the “Third RTA”), with only a few additions to what was contained in the First and Second RTAs, primarily to address a new expert report. Mr. Jesseau responded in the time required under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[7] On October 25, 2023, the plaintiff served a fourth Request to Admit (the “Fourth RTA”), again with minimal additions, primarily to address the plaintiff’s counselling sessions and an addendum expert report.

[8] The Fourth RTA did not come to Mr. Jesseau’s attention, through inadvertence. Again, he learned of its existence on the first day of trial and delivered a Response the same day.

[9] The trial was adjourned from November 2023 to the May 2024 sittings because of this issue.

[10] The plaintiff’s position is that the true reason why the RTAs were not answered by either counsel is that the litigation strategy of Aviva and their legal representatives is to ignore and disregard the Rules and plaintiffs’ counsel in an effort to frustrate and exhaust their opponents.

[11] To demonstrate, the plaintiff has set out numerous examples of this conduct through the affidavit of Ashley Demelo, a senior law clerk in the office of Kahler Personal Injury Law Firm, counsel for the plaintiff. This evidence has not been denied by the defendant. To summarize:

(a) Mr. Jesseau was asked in writing to provide a witness list on eight separate occasions. A response was never provided. Instead, he read out a long list of names during jury selection, some of which were unfamiliar to plaintiff’s counsel. The next day, another request for the list was made, to include a synopsis of the anticipated evidence. That request has not been answered.

(b) There have been a total of five requests made to both Mr. Elkin and Mr. Jesseau for an affidavit of documents. Only one request received a response, promising an affidavit of documents the following week. It did not appear. Over six months later, the defendant delivered it one business day before the trial.

(c) A psychiatric report was produced for the defendant on June 25, 2023. Two items of correspondence from plaintiff’s counsel requesting that it be served went ignored. It was served approximately two and a half weeks before the trial date. I ruled that it was inadmissible due to late service.

(d) The plaintiff’s lawyers served a motion to call more than three expert witnesses at trial as early November 2021, and served another in May 2023 after Mr. Jesseau came on the record. Despite three requests, no position was provided from the defendant as to whether that motion would be opposed.

(e) Twelve other separate items of correspondence about significant procedural matters went unanswered.

[12] Aviva denies that the failure to respond has been deliberate and submits that this motion must not become an inquisition into Aviva’s conduct. It asks that this court exercise its discretion to set aside the admissions either on the basis that the Second and Fourth RTAs are an abuse of process, or by application of the common law test for withdrawing admissions under rule 51.05.

Abuse of Process

[13] Aviva argues that its position on liability and damages has not changed since delivering its Statement of Defence, nor has counsel withdrawn the admissions or denials outlined in the First or Third Response. It asks that the court find that the additional RTAs were served for tactical reasons and to harass counsel.

[14] I find that they are not an abuse of process. They are unduly repetitious, and therefore unhelpful in clarifying what are disputed facts and documents in the litigation. Ideally, any new Request to Admit would deal only with significant developments and documents in the litigation in the period since the last Request to Admit was served. The evidence provided for the plaintiff explains that each was sent about a month prior to the anticipated commencement of trial (this matter having been on the trial list several times). The reason for sending a comprehensive RTA each time was to determine which issues the defendant still intended to dispute. In the circumstances of this case, with such unresponsive counsel on the other side, that position has some merit. Overall, however, it is a practice not to be encouraged.

[15] The problem with sending repetitious Requests to Admit is demonstrated by this case. According to the position advanced by the plaintiff, numerous admissions of fact and document authenticity had been secured when the Second RTA went unanswered. What, then, is the purpose and effect of serving the repetitious Third RTA? The first 50 or so paragraphs of the Third RTA is a repetition of the Second, with different paragraph formatting. Did plaintiff’s counsel not recall the status of the Second RTA when they delivered the Third? Does the Third RTA cure any failure to answer the Second? The Third RTA, at a minimum, does not efficiently promote an adjudication on the merits.

[16] The preceding questions do not require an answer on this motion. The question that must be answered is whether these RTAs, taken together, are an abuse of process.

[17] The common law doctrine of abuse of process is meant to address conduct that undermines adjudicative fairness or the integrity of the justice system. The doctrine has always focused on the protecting the justice system rather than the interests of individual litigants. The test for abuse of process is whether the impugned conduct affects adjudicative fairness or would otherwise bring the administration of justice into disrepute: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 2022 CarswellSask 316, at paras. 138-144.

[18] Sending four largely repetitious Requests to Admit over a year and a half does not meet this test. It also does not contravene rule 51.02 governing Requests to Admit, which places no limit on the number that may be sent: Mullin v. Allstate, 2013 ONSC 2867, at para. 28.

Withdrawal of Admission

[19] Rule 51.05 provides that an admission made in response to a request to admit, a deemed admission under rule 51.03, or an admission in a pleading may be withdrawn on consent or with leave of the court.

[20] The test has been confirmed by the Court of Appeal to have two parts: Champoux v. Jefremova, 2021 ONCA 92, at para. 28. First, the court is to consider whether the admission is one purely of fact, law or mixed fact and law, on the basis that questions of law can be withdrawn more easily than questions of fact. Second, the court is to then apply a three-part conjunctive test:

(1) Does the proposed amendment raise a triable issue in respect to the truth of the admission? (2) Is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions? and, (3) Has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated by costs.

[21] Neither party argued that the admissions in question pertain solely to issues of fact or law, but on my review, they are solely factual or in some instances are a mix of fact and law.

Triable Issue

[22] If the admissions are allowed to stand, there is little need for a trial. Liability would be concluded.

[23] Beyond the admissions arising from the Second and Fourth RTA, the defendant has never indicated that it is conceding liability, in whole or part. In its Statement of Defence, the defendant maintains that the plaintiff was the cause of the accident. It denies all liability under the unidentified and underinsured provisions of the motor vehicle policy. Its position has never changed throughout the litigation.

[24] The plaintiff has argued that some of the paragraphs in both the Second and the Fourth RTA do not contain triable issues, or that the defendant has not referenced evidence or made argument establishing such.

[25] The pleadings establish the triable issues. In addition to liability, the triable issues are the extent of the plaintiff’s damages and whether they are causally connected to the accident, and whether the plaintiff has suffered an injury that meets the statutory threshold. Aviva has taken a contrary position on each of these issues throughout. Each of the other deemed admissions touch on one or more of these issues.

[26] The authenticity of documents was admitted in the Third RTA, but not their admissibility. No explanation was provided. However, admissibility remained in dispute prior to the Fourth RTA being missed.

[27] Aviva has met this part of the test.

Reasonable Explanation

[28] Admissions that are made through counsel’s inadvertence, as opposed to admissions made deliberately, have been treated differently. In Docouto v. Ontario, 2000 CarswellOnt 3165, at para. 19, Nordheimer J. referenced National Utility Service (Canada) Ltd. v. Kenroc Tools Inc. (1995), 34 C.P.C. (3d) 362 (Ont. Gen. Div.) to maintain that “where an admission is made through inadvertence, as opposed to deliberately, the hurdle which a party must cross to withdraw that admission ought to be a very low one, absent obvious prejudice to the other side”.

[29] Accordingly, the first issue to be decided is whether, as Mr. Foster has submitted, the decision to ignore the RTAs was deliberate.

[30] Despite the abysmal record of responsiveness overall, it would be a stretch to conclude that this was deliberate. It would be professional negligence to ignore an RTA that guts a defence. A failure to respond, if not cured, deprives their client of all defences. The fact that both Mr. Elkin and Mr. Jesseau each responded to one RTA indicates that they understood what was required of them and appreciated the seriousness of not responding.

[31] Further, Mr. Elkin’s explanation in his affidavit for how the second RTA was overlooked is this:

6. I did not become aware of the October 27, 2022 RTA until after the commencement of the Jury Trial in this matter before Justice Healey on November 20, 2023. I learned then from Mr. Jesseau of the Plaintiff’s intention to rely on deemed admissions from the Defendant’s failure to respond to the October 27, 2022 and October 25, 2023 RTAs. This surprised me as my firm’s policy is to respond to RTAs within the 20 days required by Rule 51.03(1), as we had on May 9, 2022.
7. In addition, neither my assistant Kathleen Vieira, nor I, had any recollection of being served with a second RTA and it was not listed in the electronic document management system used by my firm, Primafact.
8. I then instructed Ms. Vieira to do an email search. She had some difficulty in locating this document as the covering email made no reference to a Request to Admit. Ms. Vieira advised me we had received an October 27, 2022 email with two attachments. Neither were referenced as a Request to Admit but rather numerically. On opening the attachment “202210271419141910Peter Andrew Neary019299” Ms. Vieira confirmed to me that we were indeed emailed the second RTA on October 27, 2022. A true copy of the October 27, 2022 email is attached as Exhibit “C” to my affidavit. The two attachments to the email are attached as Exhibits “D” and “E”.
9. After discussing this with Ms. Vieira, I believe that as a result of inadvertence, likely due to the number of emails that were generated on this file on that date, and how the attachments were referenced numerically, my assistant and I overlooked this email and the attached RTA. As a consequence, it was not responded to and it was not saved to Primafact until December 4, 2023 after Ms. Vieira conducted her search. Accordingly, I believe the October 27, 2022 RTA would not have been in the file material sent to Mr. Jesseau in April 2023.

[32] This explanation indicates that it was Mr. Elkin’s assistant who failed to open the email’s attachment, that there was nothing to indicate on the face of the email that a Request to Admit was attached, and that Mr. Elkin, and subsequently Mr. Jesseau, had no idea that it existed until November 2023.

[33] Mr. Jesseau’s explanation for overlooking the Fourth RTA does not elaborate beyond “inadvertence”.

[34] On the whole of the evidence, I cannot conclude that either lawyer ignored the RTAs deliberately. Accordingly, I also cannot find that Aviva instructed its counsel to ignore the RTAs.

[35] The law is mixed on the degree to which “inadvertence” must be explained by counsel in order to meet the test.

[36] In addition to Docouto and National Utility Service, there are other cases in which an explanation of mere inadvertence has been considered a reasonable explanation: Irps-Bleeker v Groenberg Farms Inc., 2022 ONSC 5316 at para 22; Duninger Corporation v. Montour, 2022 ONSC 4605, para 23. As Mossip, J. said in Irps-Bleeker, at para. 22, “there is not a lot else a lawyer can say when he has stated he admitted something inadvertently”.

[37] The first line of cases holds to the principle that the legal position of an innocent client should not be put in jeopardy by the neglect or inattention of his lawyer so long as the opposing party is not prejudiced: National Utility Service, at para. 8, citing Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 24 (Ont. C.A.), at para. 11.

[38] Other cases have provided further explanation for the error, such as serious mental health illness on the part of the lawyer: Gerling Global General Insurance Co. v. Siskind, Cromarty, Ivey & Dowler, at para 9.

[39] In Kostruba & Sons v. Perez, 2011 ONSC 4894, at para. 44, more was required because the withdrawal of the admission would have been inconsistent with an admission in the statement of defence, which differentiates Kostruba from this case. In Gaddon v. De Silva, 2023 ONSC 5400, a case which applied the test to the withdrawal of an admission under s. 22(5) of the Family Law Rules, O. Reg. 114/99, the applicant wife’s failure to answer a Request to Admit had already been addressed at an exit pretrial. She failed to follow the procedure set out by the presiding judge and brought a motion to do so on the opening day of trial, which was denied.

[40] Other cases have held that an assertion of “inadvertence” alone is insufficient. In Falco v. P.V. & V. Insurance Centre, [2007] O.J. No. 3057 (ONSC), at para. 19, Glithero J. held that greater explanation was required than merely pointing to “inadvertence”. He explained:

…. Otherwise we are left with a system whereby the party who properly follows the rules and serves the notice, proceeds with its action on the basis that those facts are admitted and only learns when it seeks to benefit from having followed the rules, that the other side can avoid the consequences of its failure by simply saying “inadvertent”.

[41] He added, at para. 20, that his decision was made easier by the fact that the defendant’s purported response, which it had served long after the deadline, reaffirmed the important admissions nonetheless. That also is not the case here.

[42] Falco was followed in Seal Tech Basement Sealing Inc. v. Prychitko, 2014 ONSC 5038, at para. 28.

[43] Mr. Jesseau’s explanation leaves much to be desired and the better practice would have been to attempt to explain the circumstances behind why the Fourth RTA came to be missed, as Mr. Elkin’s affidavit did. However, Aviva should not lose out on its entire defence because Mr. Jesseau somehow let this slip through the cracks.

[44] This is different, I would point out, from the conclusion reached in my endorsement of November 21, 2023, where the explanation of inadvertence was not accepted for late service of the defence psychiatric report. There was a long procedural history around the defendant obtaining that report, and a court order that allowed the plaintiff to have 30 days to provide an addendum report after being served with the defendant’s report. Two reminders had been sent by plaintiff’s counsel, seeking service of the report, before it was served. The report was finally served approximately four and a half months after it was prepared. On these facts, something more was required by way of explanation for such “inadvertence”, in the face of the obvious inference that the delay was strategically designed to compromise the plaintiff.

[45] Aviva has met the second prong of the test.

Prejudice

[46] I conclude that the withdrawal of the admissions would cause no prejudice.

[47] There is no question that the plaintiff has prepared for a trial that will require it to prove all of the facts in issue. I reach this conclusion on the basis that plaintiff’s counsel never informed defence counsel that it was relying on the deemed admissions before the first day of court. Nor did they advise the court that less than three weeks of trial time was required; in fact, it remained in my judicial schedule for May 2024 before those sittings were moved to September.

[48] There is no evidence that the plaintiff has prepared its case differently in reliance on the deemed admissions. The defendant’s failure to respond to the other issues raised in counsel’s correspondence has created other challenges for plaintiff’s counsel, but I cannot conclude that their preparation of the case has been compromised by the non-response to the Second and Fourth RTA. This is particularly so since the plaintiff has been faced with the contrary position from the denials in the largely overlapping First and Third RTA.

[49] The fact that the plaintiff’s counsel remained silent about the Fourth RTA in particular suggests that they were using defence counsel’s inadvertence strictly to strategic advantage. Unfortunately, that resulted in prejudice to the defendant as much as to the plaintiff, since the trial had to be postponed yet again to deal with these deemed admissions.

[50] I cannot conclude on the evidence that there is prejudice to the plaintiff in withdrawing the admissions. The defendant has met this part of the test.

Order

[51] This court orders that the deemed admissions arising from the Second and Fourth RTA are set aside.

Costs

[52] The defendant has been wholly successful and this is usually a primary consideration when considering costs of a motion. However, this is one of those cases in which costs should not be awarded to the successful party.

[53] In Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, at para. 13, the court confirmed that a party may be deprived of costs, or even required to pay the costs of the unsuccessful party, as long as the exercise of discretion is not tainted by errors of law or principle, or does not result in a decision that is plainly wrong because it is based on irrelevant factors and overlooks relevant ones.

[54] The plaintiff’s position on this motion was understandable and not unreasonable. Essentially, it argued that the failure to answer the RTAs is a part of a pattern of behaviour that displays a flagrant indifference to the Rules of Civil Procedure and the Principles of Civility for Advocates, particularly the principle that “advocates should respond promptly to correspondence and communications, including electronic communications, from opposing counsel”. While the court did not accept this position, it was a position with significant evidentiary foundation. Mr. Jesseau’s failure to respond to reasonable requests is seemingly indefensible. I also do not accept it to be the case that Aviva has no knowledge of this pattern of behaviour, given its pervasiveness throughout this file. It is litigation conduct worthy of sanction.

[55] In reaching this conclusion, I wish to make clear that I am not relying on paras. 89, 90, 121 and 122 of the Affidavit of Ashley Demelo, which contains inadmissible opinion evidence.

[56] In the face of Aviva’s lawyers’ non-responsiveness and lack of co-operation with opposing counsel throughout this action, it was not surprising that the plaintiff would put Aviva to the cost of bringing this motion and oppose it. “As you sow, so shall you reap”.

[57] Costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants: Fong v Chan, [1999] O.J. No. 4600 (Ont. C.A.), at para. 22.

[58] I choose to discourage Aviva’s litigation behavior by depriving it of costs, because its conduct contributed in no small part to the need for this interlocutory step.

[59] This court orders that each party shall bear its own costs of this motion.

Healey J. Date: April 30, 2024