Show Notes:

N/A

Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

In today’s lecture we will explain to you the Request to Admit Fact or Document in the Ontario civil procedure.  We will explain what this Request to Admit is. Why do you use it? and how do you go about making that request? or answering that request, if you have been served with one?  We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral (if you don’t know a lawyer or a paralegal}

What is request to admit fact or document? “A party can make a formal request (in this court process/in the civil court action) to another party or parties to admit the truth of a fact or authenticity of a document”. If you are serving a request to admit to another party you are asking the party to accept the truth of a fact that you have alleged in your statement of claim or statement of defence (in your pleadings) or if you have served the document as part of your affidavit of documents (that you will use at trial) you are asking the party to admit to the authenticity of that document. 

Let me explain this to you by way of an example which will make it a little bit more clear.  Let’s take a case in an employment law context.  Imagine that you are the plaintiff.  You are a former employee of a company which is the defendant.  You had worked for the company for about 3 years.  Then your employment was terminated.  You commenced a court action for wrongful dismissal damages against the company.  

In that claim you will indicate one of the facts that you will allege which is a relevant fact in cases of this nature what was the total length of your service with that employer.  In this case you had worked for the employer for 3 years. When you go to trial because you have alleged in your statement of claim that you were employed with that company for 3 years you will have to prove that fact. You will have to provide evidence to the court that will show the court (demonstrate to the court) that you were indeed employed for 3 years.  The court will not just take your word or your evidence or at least your statement on its face value. There has to be some evidence to prove that—it could be oral evidence or documentary evidence.  You may need to show your employment letter indicating when you were hired.  You may need to rely on your paystubs or some other form of documentary evidence that you were indeed employed for 3 years—now proving that point that you were employed for 3 years to the court by providing some documents or other evidence will take some time.  It may take about 5 to 10 minutes for you to just prove that one fact to the court that you were indeed employed for that company for 3 years.

One way to avoid that requirement (to prove that fact) is that you can make a request to admit to the employer prior to the commencement of trial. It is done much earlier than the trial time—that you request the employer to admit the fact that you were employed with that company for 3 years and the employer can either admit it if it’s a non-contentious issue. They most likely will admit it or they may deny it. They may not agree that they are admitting to that fact and they’re putting the burden on you to prove that you were indeed employed for 3 years. This is a sort of a benign example but it does get complicated.

For example, you know that in the 3 years that you were employed, the first 6 months you were employed through a temporary agency and you are alleging that the entire 3 years should be considered as your employment service.  The employer may be arguing that the first 6 months should not be considered part of your employment service because you were through a temp agency. It can get complicated.

 If it’s a contested fact chances are that the other party will not admit to it. But then there is downside to it for the other party if you are able to prove your fact.  There is a strategic reason for why you want to do that which I will explain in the following slides. You can ask through the request to admit the other party to admit to the truth of a fact or as many facts as you want.  Similarly, you can ask the other party to admit to the authenticity of certain documents. 

In this case you may say, “Hey, the defendant (the company) here is my employment contract.  You had issued it to me. Here I have a copy of this. I’m serving it to you as I will rely on this document at trial to show that this was my indeed my employment contract. I want you to admit to the authenticity of this employment contract because if the authenticity of the employment contract is admitted by the other side, then you don’t need to prove to the court at trial that the document that you are presenting is indeed a copy of your employment contract.  This is to give you a sense how it happens at trial. Every fact that you plead, every fact that you present you have to prove it either by documentary evidence or any other evidence but you have to prove that (you have to provide evidence). Similarly, every document that you present, you have to prove that that document is an authentic document. That’s the burden of proof that you will have and by serving this Request to Admit you can at least overcome some of those challenges by asking the other side to admit to the truth of fact or authenticity of a document.  They can do the same with respect to their facts and document.

This particular issue about admitting certain facts are true facts or the authenticity of documents is dealt with under Rule 51.  You can read that Rule but I will give you some of the important aspects of that Rule here so that you have a brief overall understanding of what this Request to Admit is about and how to effectively use it.

1st of all the Rule 52.02, you want to read that. And that Rule explains that you can serve this Request to Admit through Form 51 A.  I can quickly show you this form. This is Form 51A, a Request to Admit.  I’ll come back to it and begin to give you a sense of what is contained in that Form 51A and how do you fill that out.

Once you have served Form 51 A, your Request to Admit, the other party has 20 days to respond.  It’s set in Rule 51.03(1), that the party has to respond to your Request to Admit within 20 days of its service and if the other side does not respond then it is considered a deemed admission that you have served your Request to Admit—the court will treat that failure to respond as an admission on their part that they have accepted the facts that you have requested them to admit or they have accepted the authenticity of documents that you have asked them to admit.

This is the most important part that I want you to keep in mind which is the main reason why we want to make this Request to Admit—if a party refuses to admit a fact or authenticity of a certain document and at trial you are able to prove that fact or you’re able to prove the authenticity of that document, then there are negative cost consequences for the other side.  What the court is doing here is making the parties reasonable with respect to the things that they have to prove at trial.  If there’s something that is reasonable to accept because the other party will be able to prove it at trial, then you’re better of admitting to the truth of it because if you don’t and you’re not able to disprove that fact or you’re not able to disprove the authenticity of that document then the court will penalize you by awarding costs against you—by awarding you lesser costs than you may be entitled to.  This is one of the reasons why a Request to Admit is important. 

There are other strategic reasons for this Request to Admit.  It is a very important tool.  I want to give you a little bit of a broader understanding of what we can do with this tool.

One of the things that you can do or achieve through Request to Admit is that you can narrow down contentious issues.  In an average Statement of Claim you may have 40 to 50 facts that you may have pleaded, that you now have to prove in order to receive the remedy that you’re seeking from the court.  If you can filter out non contentious issues—for example, if you have to determine the length of your service and it’s not a contentious issue why not make it a Request to Admit and have the other side admit to it because then that’s one less issue that you have to prove (one less fact that you have to prove) to the court. 

You are saving your own time, your own financial resources and also judicial resources. You can narrow down contentious issues so that you can really spend the time for your hearing or for your trial on the issues that are genuinely contentious.  That is where you really need the court’s judgment. 

By narrowing down the contentious issues you obviously limit the length of trial.  If you have reduced it by 5 minutes to prove every single fact or 10 minutes to prove every single fact and if you start cutting down the facts that you have to prove at trial, it will obviously reduce the time (the length) of trial—less time and you will incur less cost and you will save judicial resources, as well. 

Another part that you want to keep in mind is that by requesting the other side to admit certain facts and documents you can actually control the scope of issues at trial.  This is a bit of a subtle point but an important one because sometimes you may ask the other side to admit certain benign facts but by admitting those facts you put yourself in a position where you are able to present your case better.  I can again give you an example of an employment law case. 

One of the factors that you may have to prove at trial is, or the other side (if the company is on the other side) may challenge whether you made efforts to find another job (which is called mitigation efforts).  You may have applied to 450 to 600 jobs and had not found a suitable comparable job that you were looking for. You have all of the evidence to show that you applied to this company and that company and you can go through each job search—all those 600 job searches—which is exactly what you did in terms of your mitigation efforts. 

In a trial you obviously have to prove each and every job search to show that you had applied to 600 companies or 600 advertising jobs—you applied for them and did not find a job.  One way you can shorten this is by presenting to the company that look I’ve already provided you with all the job searches that I’ve done: I’ve given you the names, I’ve given you the contact information and whatnot and based on all of the documentary evidence I’ve given to you I want you to admit that I have made sufficient efforts to mitigate my damages.  That’s one thing that you can do. Then when you do that you can actually put the company in a bit of a complicated situation because if they admit to it that yes you have made sufficient efforts that they are satisfied with it then a large portion of the fight at trial has been eliminated.  You have put yourself strategically in a good position because you now have control the scope of issues that will be at trial and this major portion of the issue is not going to be litigated because the other side has admitted to the truth of the facts that you have made sufficient efforts. 

On the other hand, if they deny it and you have to go through each and every item of your job search out of from 1 to 600, then you know it obviously creates a huge problem for the other side because if you are able to prove it—that is a significant amount of time that you’ve spent in order to prove that. 

While you’re going through that exercise and if you’re able to continuously show that you actually made those efforts and the company has not been able to create significant doubts in your testimony, then you have proven your part of this case, you have earned more sympathy from the judge, and made the judge at least think that the other side has acted unreasonably in not accepting 600 job searches—which were significant when you looked for a job.  That’s one way that when you think about the Request to Admit strategically you can actually control the scope of how and what issues are presented at trial and hopefully you can agree on the issues that are more favorable to you and then continue with the trial in that way.

Finally, as I’ve indicated there are cost consequences.  It is very important that you trigger cost consequences by making appropriate Requests to Admit because at the end of the day even if you’re successful and you get your damages it is very important for you to obtain the best cost award as possible because that is also a significant investment that you’ve made in your action. 

Let me quickly go to Request to Admit and then we’ll conclude this lecture.  It’s a pretty straightforward form.  You basically say “You Are Requested To Admit, for the purposes of this proceeding only, the truth of the following facts…” and then you list the fact in a numbered paragraph. 

You can say I want you to admit: 1. The plaintiff was employed with the company for 3 years (the plaintiff was employed with the defendant for 3 years). Fact number 2. The plaintiff is 51 years old or whatever other facts that you want the plaintiff to admit.  You put them in paragraphs consecutively.  Similarly, the next paragraph is for the documents and you can say: “I want you to admit the authenticity of the following document/s”. And you identify the document appropriately.  For example, if it’s an employment contract of the plaintiff—Employment contract of the plaintiff, so and so (name), dated so and so (date) comprising 5 pages or whatever—so that the document can be correctly identified. 

Then you attach that document with this Request to Admit and then you fill out the date and the name and who you are serving with their information and you send it by fax or other means that are permitted under the Rules. And, similarly, when you’re responding to it—you basically type it here “A Response” to Request to Admit and you take the fact and just copy the fact as it is presented and you type in your response against it.  Then you take another request (whatever the specific Request), you copy it and paste it here. Then next to that you type out your response. 

Similarly the same goes with the documents.  That’s all you have to do.  You serve it back on the other side within 20 days and remember that if you have not responded within 20 days then the court will consider that you have admitted to the truth of the request to admit that has been made.  It is a great tool if you use it strategically. I hope that I’ve given you some understanding of how to effectively use the request to admit and how to deal or respond to requests to admit in a civil proceeding in Ontario.

Thank-you for watching.