MACKENZIE v ESTATE OF MICHAEL GREGORY, 2022 ABQB 521
1.2: Purpose and intention of these rules
4.14: Authority of case management judge
6.37: Notice to admit
10.33: Court considerations in making costs award
The Plaintiffs sued for damages arising out of alleged sexual assaults committed by a late teacher. During the proceedings, the Plaintiffs served a Notice to Admit under Rule 6.37 seeking 21 separate admissions. One of the Defendants replied stating that the admissions sought were collectively “irrelevant, improper, or unnecessary.” The Plaintiffs brought an application before the Court seeking a direction that the Defendant file a further and better Reply to the Notice to Admit.
The Defendant argued that the Court does not have authority to direct it to do anything other than respond that the admissions are, collectively, “irrelevant, improper or unnecessary” as Rule 6.37(5) only requires a substantive response to “denials” and not to “objections”.
In interpreting Rule 6.37, the Court turned to the foundational Rule 1.2. Considering the rationale of the Rule generally, the Court stated that the Trial Judge must have at least enough information about the objection to assess, post-Trial, whether the objection taken was reasonable and thus not deserving of a costs sanction.
The Court held that the drafters intended a different required response where a fact is denied as opposed to an objection taken. However, even allowing for that distinction, Rule 6.37(2)(b)(ii) can only fulfil its objective if the basis for the objection - which is wholly within the knowledge of the responding party - is disclosed. Without it, there is no discernable purpose or intention to the Rule. The Court stated that an objection to an admission sought must: (1) delineate whether the objection is because the admission sought is irrelevant, improper or unnecessary; and (2) offer a basic reason for why that is so in the view of the responding party.
Further, Hollins J referred to the authority under Rule 4.14(1)(g)(iii) to deal with the issue of admissions in the capacity as Case Management Justice but did so only to the extent necessary to move the matter forward by outlining the general expectations of a party objecting to admission sought.
The Court also noted that while the new Rule 6.37, in comparison with the former rule, no longer contains a possible costs penalty for refusing to make an admission which was subsequently proven by the other party at trial, Rule 10.33(2)(b) states that a judge may consider a denial or refusal to admit anything that ought to have been admitted as a factor in assessing costs.
The Court granted the Plaintiffs’ Application.View CanLII Details