Request to admit invalid at appellate stage: Ontario Court of Appeal

Application seeks to stop COVID-19 vaccines from being administered to children under 12

Request to admit invalid at appellate stage: Ontario Court of Appeal

A motion for leave to appeal should proceed on an already settled record, the Ontario Court of Appeal held. It should not be a hearing in which facts or documents not admitted could subsequently be proven, the court said.

A man filed a judicial review application that asked for a mandamus order compelling Ontario’s chief medical officer of health to issue a directive to all public health units to permanently refrain from administering COVID-19 vaccines to children under 12 years old. Last July, Ontario’s Divisional Court quashed his judicial review application.

The applicant filed a motion seeking leave to appeal the Divisional Court’s order to the appellate court. He served the chief medical officer with a request to admit dated Oct. 25 under r. 51.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The court’s registrar refused to accept the applicant’s request to admit for filing and said that r. 51.02 was inapplicable to a motion for leave to appeal in the appellate court.

The applicant brought a motion for directions. He asked the appellate court to direct the following:

  • that the registrar accept the request to admit for filing
  • that the request and any response that the chief medical officer would make to it form part of the record before the appellate court on the pending motion for leave to appeal and, if leave would be granted, on a motion to expedite

The chief medical officer opposed and argued that the applicant could not resort to r. 51.02 on a motion for leave to appeal.

Request to admit rejected

In Ash v. Ontario (Chief Medical Officer), 2022 ONCA 849, the Ontario Court of Appeal dismissed the motion. It ruled that the applicant’s request to admit was invalid and that a motion for leave to appeal should proceed on an already settled record.

The judicial review application was the forum within which the applicant could develop the factual record that would allegedly support his requested relief, the appellate court said.

The applicant argued that, because r. 51.02(1) included the phrase “at any time,” the court could use the process for a request to admit even if the proceeding already reached the appellate stage.

The Court of Appeal rejected the applicant’s interpretation. The appellate court found that the process in r. 51 was intended for use before the fact-determining hearing, including a trial, an application, or a summary judgment motion that would decide the facts without a trial.

Orlan Karigan & Associate Ltd. v. Hoffman, 2000 CanLII 22725 (ON SC) held that a request to admit was valid only if served over 20 days before a trial. Serving such a request any later than that would be invalid because it was a pre-trial process that could not be used during the trial, the ruling stated.

Thus, in the present matter, the Court of Appeal said that the applicant could not initiate a request to admit at an even later stage, namely the appellate stage. This interpretation was in line with the rule’s language as a whole and in light of its context, the appellate court added.

This interpretation was also consistent with r. 51’s purpose, which was to allow the parties to prepare for a trial that was efficient and that was focused on the disputed matter, the appellate court said. The rule’s purpose was not to enable a party to expand, to supplement, or to alter the factual record after the trial or initial dispositive hearing already took place, the appellate court concluded.

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