Malik v. Eagle Mountain Farms

2023 BCSC 836 Malik v. Eagle Mountain Farms IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Malik v. Eagle Mountain Farms, 2023 BCSC 836 Date: 20230420 Docket: S208116 Registry: New Westminster Between: Raminder Kaur Malik Plaintiff And Eagle Mountain Farm Ltd., Manmohan Singh Heer and Jasbir Singh Banwait Defendants And Ripudaman Singh Malik and Satnam Education Society Defendants by Way of Counterclaim Before: Master Nielsen Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: J.S. Malik Counsel for the Defendants: K. Rejminiak No other appearances: Place and Date of Hearing: New Westminster, B.C. April 20, 2023 Place and Date of Judgment: New Westminster, B.C. April 20, 2023 [1] THE COURT: This is an application under Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules] 7-7(14) for an order that the request to admit are deemed admitted or alternatively that the responses to the notices to admit at paras. 4-29 be struck as failing to comply with the rule. [2] The Civil Rule 7-7(14) reads in part: (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. [3] The Civil Rule 7-7(2) speaks to the effect of a notice to admit and provides that: (2) Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in a notice to admit is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement that (a) specifically denies the truth of the fact or the authenticity of the document, (b) sets out in detail the reasons why the party cannot make the admission, or (c) states that the refusal to admit the truth of the fact or the authenticity of the document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets out in detail the reasons for the refusal. [4] Finally, the Civil Rule 7-7(4) provides that the court may order a party who unreasonably refuses to admit a fact, pay the costs associated with the proof of those facts which the party unreasonably refused to admit. [5] If a responding party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document specified in a notice to admit, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court considers appropriate. [6] In the present case, at paras. 4-29 of the notice to admit, the defendants have provided a boilerplate refusal which reads; "Refuse to make admission. The circumstances surrounding the dealing of the parties are outlined in the pleadings filed by the defendants. This is a triable issue and cannot be dealt with by way of admissions." [7] In Ceperkovic v. MacDonald, 2016 BCSC 939, Madam Justice Dillon discusses the purpose of a notice to admit at para. 30, where she says: [30] 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), 189 F.T.R. 76 at para. 43, [2000] 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 [citation]. 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), 1994 CanLII 9096 (AB KB), 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 at para. 44 (Furgiuele)). [8] The decision canvasses the factors enumerated in Civil Rule 7‑7(2) and discusses some of the valid refusals for admitting a fact; namely, that the requested fact is privileged, that the party simply does not have the information necessary to answer it, or that the requested admission is somehow improper, or a veiled attempt to obtain particulars or ensure compliance with discovery obligations. The court also states, at para. 35, that the notice might be overly repetitious, overly broad, in the nature of argument, or vague. [9] At para. 38, she summarizes that: [38] ...the failure to admit the truth of a fact may be unreasonable within the meaning of [the rule] if: (a) the truth of the fact is subsequently proved; (b) the fact was relevant to a material issue ...; (c) the fact was not subject to privilege; (d) the notice to admit was not otherwise improper; (e) the notice to admit was reasonably capable of evaluation within the time required for response; and (f) the refusing party had no reasonable grounds for believing that it would prevail on the matter. With respect to interlocutory applications, in my view, subparagraphs (b) through (e) cited above are applicable. [10] In The Whalen Company v. Olympic International Agencies, 2017 BCSC 1771, at paras. 30-37, the court explores an alleged failure to appropriately respond to a notice to admit. The court discusses the defendant's refusal to admit facts without denying the truth of the facts, or expressing the inability to answer the question, or setting out any in detail the reason for the refusal. The court ultimately finds this approach is not an appropriate response within the context of the rule. [11] In my view, the boilerplate response to the notice to admit in the present circumstances is not sufficient as it does not comply with the Civil Rules. The response does not deny the truth of the facts as alleged, it does not indicate that the defendant is unaware of the alleged fact, there is no claim of privilege, no suggestion the questions are irrelevant or otherwise improper, nor does it set out in any detail, in my view, the reason for the refusal. The bold statement that the circumstances surrounding the dealings of the party are outlined in the pleadings, and that it is a triable issue and cannot be dealt with by way of admissions, is insufficient. It does not comply with the Civil Rules. [12] The remedy in circumstances where the court reaches that conclusion is to strike the answers pursuant to Civil Rule 9-5 and give the defendants the opportunity within -- how much time did the court give in Nouhi v. Pourtagi, 2021 BCSC 1779? [13] MR J. MALIK: Fourteen days -- [14] THE COURT: Fourteen days. [15] MR J. MALIK: -- for both, in Nouhi and Whalen. [16] MS K. REJMINIAK: Fourteen, it is the standard for the time to reply for a notice to admit. [17] THE COURT: All right. [18] MS K. REJMINIAK: It seems fitting in the circumstances. [19] THE COURT: All right. Then the defendant will have 14 days to reply. [20] I heard Mr. Malik on the issue of costs. I am not going to award costs payable forthwith. The plaintiff will have their costs in the cause. [21] MR J. MALIK: If I can seek one clarification, Your Honour. [22] THE COURT: And this, too. Yes. [23] MR J. MALIK: Sorry, you have given back the binder, but para. 2 of the notice of application says that the reply is struck, and I wanted to add the words that my friend's new reply is due by May 4, just so we just a day for the 14 days. That is what seems to be done in Whalen is that they gave a specific date. So two weeks from today is May 4th. [24] THE COURT: Is that okay? [25] MS K. REJMINIAK: I do not see any reason why -- [26] THE COURT: Okay. [27] MS K. REJMINIAK: -- that would not be. [28] THE COURT: All right. Then, so -- [29] MR J. MALIK: I just thought it was easier -- [30] THE COURT: Yes. [31] THE COURT: Okay. The order will read no later than May 4th. [32] MR J. MALIK: Sure. [33] MS K. REJMINIAK: That is agreeable. [34] THE COURT: All right. Thank you. [35] MR J. MALIK: Thank you. "Master Nielsen"