Lawyers made an oversight, but it was not deliberate: court
The Ontario Superior Court of Justice has set aside deemed admissions from two Requests to Admit (RTAs) in a motor vehicle accident case after the defendant, Aviva Insurance, failed to respond within the required timeframe.
The dispute in Neary v. Aviva Insurance Company of Canada, 2024 ONSC 2510 began when the plaintiff served Aviva's previous attorney, Mark Elkin, with a 56-paragraph Request to Admit (First RTA) in April 2022. Elkin denied all paragraphs promptly within the 20-day response period.
However, Elkin's office overlooked a second RTA served in October 2022 and went unanswered. The oversight was not discovered until the trial began in November 2023, at which point Elkin's successor, William Jesseau, delivered a response.
Further complicating matters, the plaintiff served additional RTAs to address new evidence and developments. Jesseau properly responded to the third RTA within the timeframe, but a fourth RTA delivered in October 2023 was again missed due to an oversight. Jesseau only became aware of this on the first day of the trial.
The plaintiff alleged that Aviva deliberately ignored the RTAs as part of a litigation strategy to frustrate and exhaust their opponents. However, the Superior Court concluded that the oversight was not deliberate, as both lawyers acknowledged the seriousness of their obligation to respond. Elkin explained in his affidavit that the second RTA was inadvertently missed due to the high volume of emails and the lack of clear labelling on the attachment. Jesseau did not elaborate on the fourth RTA being overlooked beyond citing inadvertence.
In applying a two-part test for withdrawing admissions under Rule 51.05, the court found that the admissions, if left standing, would effectively determine liability and render a trial unnecessary. Aviva maintained that it never conceded liability and consistently disputed the plaintiff's claims.
Despite Aviva's success in setting aside the admissions, the court denied its costs, citing unresponsiveness and lack of cooperation throughout the litigation. The court stated that Aviva's conduct contributed to the need for this motion and that "as you sow, so shall you reap." Thus, both parties were ordered to bear their costs for this motion. The trial will proceed in the May 2024 sittings.
