Summary Trial Documentary Evidence – Rule 9-7(5)(d) Notice to Admit
Admission under Rule 7-7 (Notice to Admit)
The purpose of a notice to admit is to obtain evidence in the form of admitted facts. Its primary purpose is to encourage the admission of undisputed facts, to shorten trials and thereby reduce expenses.
The Notice to Admit is a pre-trial tool that should not be overlooked. A review of the Rule that governs the Notice to Admit should be well known and we will begin this article with reviewing Rule 7-7 Admissions
Notice to admit
(1) In an action in which a response to civil claim has been filed, a party of record may, by service of a notice to admit in Form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of a document specified in the notice.
This article pertains to use of evidence sought by a Notice to Admit for the purposes of a Summary Trial application. This evidence can be very effective. Admissions under Rule 7-7 can be relied on in a Summary Trial application. They are especially useful in matter where there are contradicted facts. Perhaps admissions under a Notice to Admit will assist the Court with a finding of facts.
We will take a look at some quotations from cases that speak to the use and purpose of a Notice to Admit.
The use of a Notice to Admit was elaborated in Mee Hoi Bros. Company Ltd. v. Borving Investments (Canada) Ltd., 2016 BCSC 2478 (CanLII)
To start with, Rule 7–7 does not contain any words of limitation restricting notices to admit the trials of actions in the main, nor does it exclude their use in costs hearings or assessments. To the contrary, the language is broad and speaks of their use in “an action”. Rule 7–7(2) states that the fact sought to be admitted is deemed to be admitted “for the purposes of the action only” unless the responding party responds in accordance with that Rule.
Also note the purpose of a Notice to Admit was discussed in Ceperkovic v. MacDonald, 2016 BCSC 939 (CanLII)
The purposes of the notice to admit are multiple. The primary purpose is to “save both the Court and litigants the time and expense involved in proving the authenticity of documents or in proving facts” (Clarke v. Minister of National Revenue (2000), 2000 CanLII 15090 (FC), 189 F.T.R. 76 at para. 43,  F.C.J. No. 475). The rule is intended to eliminate issues altogether from a case or to facilitate proof of issues that cannot be eliminated (Garry D. Watson & Derek McKay, eds., Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1993) (looseleaf updated 2014, release 1) vol. 5 at 51§7 (Holmested and Watson)). Thus, the notice to admit can isolate important factors from a strategic and cost efficient perspective (Foster v. Juhasz, 2010 BCSC 143 (CanLII) at paras. 25-27). It enables the parties to “prepare for an efficient trial focused on what is disputed” (Orlan Karigan & Associate Ltd. v. Hoffman (2000), 2000 CanLII 22725 (ON SC), 52 O.R. (3d) 235 at para. 21 (Sup. Ct. J.)). The notice to admit obviates the necessity and expense of calling evidence at trial (Canada Southern Petroleum v. Amoco Canada Petroleum (1994), 168 A.R. 126 at para. 16 (Q.B.)). Ultimately, it is a means to foster the timely adjudication of a claim on its merits (Furgiuele v. Don Casselman Global Enterprises, 2013 ONSC 7032 (CanLII) at para. 44 (Furgiuele)).
As quick reference to the purpose of Rule 7-7 (Notices to Admit), this excerpt is taken from Piso v. Thompson, 2010 BCSC 1746 (CanLII):
The Notice to Admit is available in our Rule 7-7 to increase efficiency in the conduct of cases and to deal with matters that are not contentious and should be admitted. The rule in fact provides that a party’s failure to admit a fact or document which should be admitted may be punished in costs.
Silence on the part of the party receiving such a notice results in a deemed admission of the assertion or document contained in the Notice. Rule 7-7(5) provides that a party is not entitled to withdraw a deemed admission without leave of the court.
In the event an admission must be withdrawn, be aware of the leading authority that identifies factors the Court will consider on such an application: See Seinen v. Seinen, 2018 BCSC 1455 (CanLii):
In Sidhu v. Hothi, 2014 BCCA 510 (CanLII), the court reaffirmed the test for withdrawal of admissions as being a consideration of whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact. The relevant factors were reframed in Sidhu at para. 25, as follows:
(a) whether the admission was made inadvertently, hastily, or without knowledge of the facts;
(b) whether the “fact” admitted was or was not within the knowledge of the party making the admission;
(c) where the admission is one of fact, whether it is or may be untrue;
(d) whether and to what extent the withdrawal of the admission would prejudice a party; and
(e) whether there has been delay in the application to withdraw the admission and any reason offered for such delay.
 It has been stated many times by this Court and the Court of Appeal that allowing the withdrawal of an admission is highly discretionary: Goundar v. Nguyen 2013 BCCA 251 (CanLII) at para. 28; Sidhu at para. 26; Dhillon v. Singer, 2017 BCSC 414 (CanLII) at para. 22.
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