The Defendant applied to strike a Notice to Admit Facts served after the Plaintiffs filed a Statement of Claim pursuant to the Class Proceedings Act. The Defendant claimed that the Notice to Admit was premature and otherwise improper.

Martin J. held that the Application was to be determined under Rule 6.37 which deals with Notices to Admit and, in particular, Rule 6.37(8) which holds that, on Application, the Court may set aside a Notice to Admit. Martin J. further held that a failure to admit anything that should have been admitted is a specific matter that the Court can consider under Rule 10.33(2)(b) when asked to make a costs award. Unlike “old” Rule 230, Martin J. found that Rule 6.37(8) does not outline when a Court should set aside a Notice to Admit, leaving it to the discretion of the presiding Judge. Further, Rule 6.37(8) expressly states that a Notice to Admit can be used in “applications” as well as “originating applications, summary trial or trial”, and therefore, while a Notice to Admit may be useful to crystallize certain facts after Discovery and before Trial begins, it is also useful at other times.