New Rules of Court Interpreted: Rule 6.37 and Notice to Admit

Case commented on: Andriuk v. Merrill Lynch Canada Inc., 2011 ABQB 59

Andriuk filed a statement of claim against Merrill Lynch pursuant to the Class Proceedings Act, S.A. 2003, c. C-16.5. Merrill Lynch had indicated that it would not provide a statement of defence until after the certification hearing and Andriuk did not object. Andriuk then served Merrill Lynch with a Notice to Admit Facts under the former Rule 230. Merrill Lynch claimed the Notice to Admit Facts (called a “Notice to Admit” under New Rule 6.37) was premature and otherwise improper and brought an application to strike it. Madam Justice Sheilah Martin dismissed Merrill Lynch’s application.

Justice Martin first determined that under the transitional provisions in s. 15.1, New Rule 6.37, Notice to Admit, would apply as this was an existing proceeding commenced, but not concluded under the former rules. Unlike the former Rule 230, New Rule 6.37(8) does not specify when a court should set aside a Notice to Admit, leaving it to the discretion of the court. Cases involving the former rule provide historical context and some guidance, but the starting point for analysis is the new rule itself (para. 20).

Merrill Lynch argued that the singular purpose of a Notice to Admit was to expedite proof at trial. However, the court held (at para. 21) that a Notice to Admit could apply to a variety of proceedings and was consistent with the express purpose of the New Rules – to help parties and courts identify the real issues in dispute and to facilitate the quickest means of resolving a claim at the least expense. There was nothing on the face of New Rule 6.37 or in the intention behind the rule that would limit its use to proof of evidence at trial. Merrill Lynch also raised a series of objections about the type, manner and content of the admissions sought, including ambiguity, generality, legal determinations, conclusory statements that lack foundation, improper form and opinions on highly specialized subjects. The court dismissed these objections, saying “[t]here will need to be a good reason, which is inconsistent with the goals and purposes of the new rules, as well as the wording and intention of rule 6.37 before a Notice to Admit will be struck: something that amounts to an abuse of process or strikes at the heart of adjudicative fairness.” (para. 22).

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