master robertson

1.2: Purpose and intention of these rules
5.13: Obtaining records from others
5.30: Undertakings
6.3: Applications generally
6.37: Notice to admit
13.6: Pleadings: general requirements

Case Summary

The Plaintiff, Ms. Milavsky, commenced proceedings against the executors of her ex-husband’s estate, trustees of family trusts he had established and companies which were related to his businesses in order to resolve matrimonial property disputes. Ms. Milavsky applied to compel the production of historical records from some of the Defendants, and from certain companies who were not named as parties to the litigation. The parties also each sought Undertaking Responses from one another and argued over objections at Questioning and the Plaintiff’s response to a Notice to Admit.

Ms. Milavsky argued that certain trusts were shams; however, this allegation was not pleaded. Master Robertson observed that Ms. Milavsky had sworn statements in relation to the trusts, where she asserted that she did not understand what she had signed. The Court stated that Rule 13.6(3) would require Ms. Milavsky to plead non est factum in her Claim, which had not been done. Master Robertson noted that pleadings are not meaningless ritual incantations, rather they fulfill the first rule of natural justice: knowing the case against one.

Master Robertson considered Ms. Milavsky’s Application to compel certain records from the Defendants and non-parties. Master Robertson held that the corporations were not required to produce the requested records as they were non-parties to the litigation, and the Application did not mention or rely on Rule 5.13. The Court stated that, according to Rule 6.3(2)(d), an Applicant is required to specify which Rules they are going to be relying on at an Application. Master Robertson noted that Rule 5.13 “is to be used as a ‘last resort’ way to get at relevant and material records”. The records should be provided by the litigants themselves.

The Court also considered the Undertaking refusals in a detailed fashion, and ruled on whether each of them should be answered.

With respect to the Notice to Admit Facts served on Ms. Milavsky from the Estate, the Court noted that Ms. Milavsky’s counsel wrote back to counsel for the Estate stating that Ms. Milavsky would not be responding to the Notice to Admit Facts. Ms. Milavsky did not expressly deny or admit the facts in the Notice to Admit, and did not apply to set it aside. The Estate argued that, pursuant to Rule 6.37, the result of failing to respond to a Notice to Admit Facts is that everything in the Notice to Admit is presumed to be admitted. Master Robertson reviewed Rule 6.37 and noted that, although the letter by Ms. Milavsky’s counsel may approach a response contemplated by Rule 6.37(3)(b), it was not an appropriate response since many of the paragraphs in the Notice to Admit Facts were clearly relevant and material admissible facts. However, Master Robertson stated that Rule 6.37 does not contemplate that a Master in Chambers would be permitted to question the assessment of admissibility made by the responding party. The Court concluded that, even though Ms. Milavsky’s reply did not conform with the purpose of the Rule, since the Notice to Admit Facts was not ignored but rather reasons were given for not admitting the facts, that no admissions were deemed to have been given.

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