Neary v. Aviva Insurance Company of Canada, 2024 ONSC 2510

By: Will Harding, Partner and Emma Funston-Clarke, Summer Student

1. The Facts

• On April 20, 2022, the Plaintiff served Aviva’s original counsel, with a Request to Admit (the “First RTA”).  Counsel responded within the required 20-day period by denying all paragraphs in the First RTA and the authenticity of all documents for reasons stated in the Response (the “First Response”).
• On October 27, 2022, the Plaintiff served a second Request to Admit (the “Second RTA”).  Defence counsel stated he did not become aware of the Second RTA when it was served and failed to deliver a response within the required 20-day period.  The matter was called to trial on November 20, 2023, and the mistake was subsequently discovered.  The Plaintiff’s lawyer advised of his intention to rely on the deemed admissions.  A Response was delivered that same day.
• In April 2023, new counsel took over the file for the Defendnat.  Counsel did not withdraw any of the denials in the First Response.
• On April 27, 2023, the Plaintiff served the third 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.  Defence counsel responded in the time required under the Rules of Civil Procedure (“the Rules”).
• On October 25, 2023, the Plaintiff served a fourth Request to Admit (the “Fourth RTA”) with minimal additions, primarily to address the Plaintiff’s counselling sessions and an addendum expert report.  The Fourth RTA did not come to defence counsel’s attention through inadvertence.  He learned of its existence on the first day of trial and delivered a Response the same day.

2. The Motion

• The Defendant moved for an order striking two Requests to Admit delivered by the Plaintiff, or in the alternate, an order withdrawing the deemed admissions arising from the two Requests to Admit, which went unanswered by the Defendant.

3. The Positions of the Parties

• The Plaintiff took the position that the true reasons the RTAs were unanswered were that the litigation strategy of Aviva and their legal representative was to ignore and disregard the Rules and the Plaintiff’s counsel to frustrate and exhaust their opponents.
• Aviva denied that the failure to respond had been deliberate and submitted that the motion must not become an inquisition into their conduct.  Subsequently, Aviva asked that the court exercise its discretion to set aside the admissions either because the Second and Fourth RTAs are an abuse of process or by applying the common law test for withdrawing admissions under Rule 51.05.
• Aviva also asked the court to find that the additional RTAs were served for tactical reasons and to harass counsel.

4. Abuse of Process

4.1. The Test

•  The common law doctrine of abuse of process addresses conduct that undermines adjudicative fairness or the integrity of the justice system.  The doctrine focuses on protecting the justice system rather than the interests of individual litigants.The test for abuse of process, set out in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, is whether the impugned conduct affects adjudicative fairness or would otherwise bring the administration of justice into disrepute.

4.2. Analysis

• The court found that the additional RTAs were not an abuse of process.Sending four largely repetitious RTAs over a year and a half does not satisfy the test.  Further, 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.)

  The court stated that the RTAs were unduly repetitious and, therefore, unhelpful in clarifying the disputed facts and documents in the litigation. Ideally, new Requests to Admit would deal only with significant developments and documents in the litigation since the last Request to Admit was served.

  The Plaintiff’s reasoning for sending a comprehensive RTA each time was to determine which issues the Defendant still intended to dispute.  In this case, with such unresponsive counsel on the other side, the court found the position to have some merit but cautioned that it is not a practice to be encouraged.

  According to the Plaintiff’s position, numerous admissions of fact and document authenticity were secured when the Second RTA went unanswered. As such, the court found no purpose in serving the repetitious Third RTA, which, at a minimum, does not efficiently promote an adjudication on the merits.

5. Withdrawal of Admission

• The court found that the additional RTAs were not an abuse of process.Sending four largely repetitious RTAs over a year and a half does not satisfy the test.  Further, 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.)

  The court stated that the RTAs were unduly repetitious and, therefore, unhelpful in clarifying the disputed facts and documents in the litigation. Ideally, new Requests to Admit would deal only with significant developments and documents in the litigation since the last Request to Admit was served.

  The Plaintiff’s reasoning for sending a comprehensive RTA each time was to determine which issues the Defendant still intended to dispute.  In this case, with such unresponsive counsel on the other side, the court found the position to have some merit but cautioned that it is not a practice to be encouraged.

  According to the Plaintiff’s position, numerous admissions of fact and document authenticity were secured when the Second RTA went unanswered. As such, the court found no purpose in serving the repetitious Third RTA, which, at a minimum, does not efficiently promote an adjudication on the merits.

5.1. Triable Issue

• If the court allowed the admissions to stand, there would be little need for a trial, and liability would be concluded.However, the court determined that the extent of the Plaintiff’s damages, including whether they are casually connected to the accident, and whether the Plaintiff has suffered any injury, meets the statutory threshold is a triable issue.

  The court determined that Aviva met this part of the test.

5.2. Reasonable Explanation

• Admissions 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.”The court could not conclude that either lawyer ignored the RTAs deliberately.  Similarly, the court could not find that Aviva instructed its counsel to ignore the RTAs.

  Aviva met this part of the test.

5.3. Prejudice

• The court found that the Plaintiff prepared for a trial requiring it to prove all of the facts in issue.  In other words, the Plaintiff did not prepare for trial relying on the admissions, as evidenced by the following:
  1. Plaintiff’s counsel never informed defence counsel that they relied on the deemed admissions before the first day of court.
  2. Plaintiff’s counsel did not advise the court that less than three weeks of trial time was required.
  3. There was no evidence that the Plaintiff prepared their case differently based on the deemed admissions.

  The fact that the Plaintiff’s counsel remained silent about the Fourth RTA suggests they were using defence counsel’s inadvertence strictly to a strategic advantage.  This resulted in prejudice to the Defendant as much as to the Plaintiff since the trial had to be postponed again to deal with these deemed admissions.

  The court could not find prejudice to the Plaintiff in withdrawing the admissions.  The Defendant met this part of the test.

6. Order & Costs

6.1. Order

• The deemed admissions arising from the Second and the Fourth RTA are set aside.

6.2. Costs

• Costs rules are designed to foster three fundamental purposes (Fong v. Chan, 1999 CanLII 2052, at para. 22):
  1. To indemnify successful litigants for the cost of litigation;
  2. To encourage settlements; and
  3. To discourage and sanction inappropriate behaviour by litigants

  The court chose to discourage Aviva’s litigation behaviour by depriving it of costs because its conduct contributed in no small part to the need for this interlocutory step.

  The court ordered that each party shall bear its own costs of the motion.

7. Conclusion

• The decision highlights several considerations for lawyers regarding the use of RTAs.
  1. RTAs should be used with good judgement and should add value to a case without being overly repetitious. RTAs should clarify the issues in dispute.
  2. If response deadlines for RTAs are missed, the party must successfully plead inadvertence to withdraw the admission under Rule05.
• The court also reaffirmed the test for withdrawing admissions set out in Champoux v. Jefremova, 2021 ONCA 92, at para. 28.