STRINGER v EMPIRE LIFE INSURANCE COMPANY, 2015 ABCA 349
PAPERNY, SLATTER AND ROWBOTHAM JJA
1.2: Purpose and intention of these rules
1.5: Rule contravention, non-compliance and irregularities
6.14: Appeal from master’s judgment or order
6.37: Notice to admit
8.4: Trial date: scheduled by court clerk
10.33: Court considerations in making costs award
The Court considered whether the Plaintiffs (Respondents on Appeal) should be permitted to withdraw certain deemed admissions that arose because they failed to reply to a Notice to Admit to Facts in time. The Defendants served a Notice to Admit Facts for an impending Trial on October 2, 2013. The Plaintiffs replied to the Notice to Admit Facts twenty days after the deadline stipulated under Rule 6.37(3), in the middle of November, 2013. Three days prior to the scheduled Trial beginning, the parties appeared before the Trial Judge and the Plaintiffs requested that the deemed admissions under Rule 6.37(6) be withdrawn. The Trial Judge ruled that an Application would be required and adjourned the Trial.
The Chambers Judge withdrew the disputed deemed admissions and the Defendants appealed. The Court of Appeal considered the applicable legal test. The Court of Appeal noted that there are four elements to consider when deciding whether to withdraw deemed admissions. The four factors are: (i) whether the party who made the admission, whether explicit or deemed, has demonstrated to the satisfaction of the Judge that the evidence available about the facts in question is such that a determination of the truth at a Trial is the only satisfactory means to settle the issue, (ii) whether the decision to admit was conscious and deliberate and without reasonable excuse, (iii) whether the withdrawal of the admission would cause substantial prejudice not compensable in Costs, and (iv) in the case of intentional admissions, whether a penalty should be applied. The Court of Appeal also noted that no single factor is determinative. Other factors must be balanced and, in the end, the Justice or Master has the discretion to allow or withdraw the admissions. The Court of Appeal also noted that a Judge should also consider whether withdrawing the admission would cause prejudice to the other party that cannot be remedied by Costs or other terms under Rule 1.5.
The Court of Appeal also noted that some evidence needs to be presented to justify not admitting the facts in question. The moving party is required to show cause as to why the deemed admissions ought to be withdrawn. The Court of Appeal upheld the Chambers Judge’s decision overturning the deemed admissions, as there was some evidence showing that the deemed admissions were actually in dispute.View CanLII Details