Two days before the Trial commenced, the Defendant, WBL, served a Notice to Admit Facts on another Defendant, AEL. The Plaintiffs applied under Rule 6.37(8) to set aside WBL’s Notice to Admit Facts. The Application was granted.

WBL argued that since the admission was only as between WBL and AEL, the Plaintiffs had no standing to apply to set aside the Notice to Admit Facts. Sidnell J. disagreed with that argument. Subsections (2) and (4) of Rule 6.37, in requiring a Notice to Admit be served on all Parties to the Action, show that Rule 6.37 contemplates that a Notice to Admit may be relevant to, and affect, other Parties to the Action.

When determining whether a Notice to Admit Facts can be served after the commencement of Trial, Sidnell J. cited TS v Stazenski, 2011 ABQB 508 for the proposition that Rule 6.37 should be read as limiting its use to a period that is at least 20 days before a Trial commences. However, Sidnell J. noted that under special circumstances, a Notice to Admit can be served after the Trial has commenced.

Relying on Stazenski and Andriuk v Merrill Lynch Canada Inc, 2011 ABQB 59, Sidnell J found that the non-exhaustive considerations on an Application to set aside a Notice to Admit under Rule 6.37(8) include whether the Notice to Admit: (a) achieves the intention of the Rules, as set out in Rule 1.2; (b) should be set aside for a reason set out in Rule 1.4(2)(b): for being contrary to law, an abuse of process or is undertaken for an improper purpose; or (c) affects trial fairness or is prejudicial to other Parties.

Sidnell J. found that the Plaintiffs would be prejudiced by the Notice to Admit Facts because it was served, and replied to, on the eve of Trial such that the Plaintiffs were unable to properly prepare for it.

Further, having noted that WBL submitted that if it could not rely on the Reply to Notice to Admit documents, it would call an individual a witness to give evidence, Sidnell J held that if this individual is called as a witness by WBL, the Plaintiffs would have the opportunity to cross-examine him on his evidence. On the other hand, if the Notice to Admit Documents were accepted, this individual’s evidence would not be subjected to cross-examination, which plays a very important role in the adversarial system.

Sidnell J. further found that the use of the Notice to Admit documents would preclude some Parties from testing that evidence by cross-examination, which would be contrary to Trial fairness and be prejudicial to those Parties.