T.S. v. Stazenski, 2011 ABQB 508

Court of Queen ’ s Bench of Alberta Citation: T.S. v. Stazenski, 2011 ABQB 508 Date: 20110812 Docket: 0403 04003 Registry: Edmonton Between: T.S. Plaintiff - and - Brian Stazenski Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] The Defendant applies under Rule 6.37(8) for an order setting aside a Notice to Admit Facts filed by the Plaintiff. [ 2 ] The trial of this matter commenced before me on Wednesday, April 27, 2011.

Only two and a half days were available for the trial. The time was not sufficient to complete the presentation of the Plaintiff ’ s case. At the close of court on April 29, 2011, the trial was adjourned for completion on June 28, 29 and 30, 2011. [ 3 ] On May 17, 2011, Plaintiff ’ s counsel filed and served a Notice to Admit Facts on Defendant ’ s counsel. The notice listed 21 facts of which the Defendant ’ s admission was sought. These can be categorized as follows:

a) Admissions of “ facts ” which were part of the basis of some of the opinions of an expert witness who testified in the trial on April 29;

b) Admissions as to documents which were disclosed in the Plaintiff ’ s Affidavit of Records that they have the characteristics that would make them admissible in evidence under Ares v. Venner and that the “ facts and/or opinions ” set out in them are true;

c) Admissions concerning the opinions of several health care professionals who dealt with the Plaintiff which are reflected in affidavits they have sworn;

d) Admissions that Plaintiff ’ s counsel had advised Defendant ’ s counsel that these health care professionals would be called at trial as treating professionals and that if the Defendant wanted other treating professionals to be called the Plaintiff would try to make the necessary arrangements;

e) Admissions concerning an agreement between counsel as to whether adverse inferences would be sought if particular witnesses were not called. [ 4 ] On June 17, 2011, Plaintiff ’ s counsel served an Application returnable June 21, 2011 for an order:

a) permitting the admission into evidence of hospital records relating to the Plaintiff;

b) setting a time prior to the recommencement of the trial for the Defendant ’ s counsel to cross-examine the authors of the records if he wanted to;

c) permitting the affidavits of 3 expert witnesses to be entered in evidence and setting a time prior to the recommencement of the trial for the Defendant ’ s counsel to cross-examine those experts if he wanted to; and

d) permitting the Plaintiff to call a fourth expert at trial. [ 5 ] Defendant ’ s counsel cross-applied for an order striking the Notice to Admit Facts. [ 6 ] On June 21, 2011, I dismissed the Plaintiff ’ s application but adjourned the continuation of the trial sine die in order to give the Plaintiff time to properly comply with the Rules of Court relating to the calling of expert witnesses. [ 7 ] As to the cross-application the Defendant challenged the Notice to Admit on two bases. [ 8 ] First, the Defendant submitted that a Notice to Admit Facts cannot be served after the commencement of the trial.

It is exclusively a pre-trial procedure. Indeed, in order to have the effect desired by the party serving it, it must be served more than 20 days before the commencement of the trial. This, the Defendant submits, is the necessary implication of Rule 6.37. That Rule does not expressly require that the Notice to Admit Facts be served before trial but it necessarily implies such a limitation because the party on whom the notice is served is given 20 days to reply to the notice.

The facts are not deemed to be admitted unless no response is filed within the 20 days. [ 9 ] Second, the Defendant submitted that the specific admissions listed in the Notice to Admit are improperly sought. Admissions in the first category described above are sought to provide a factual foundation for opinions given by the expert who has already testified. The Defendant argued that it is unfair for a Plaintiff to serve a Notice to Admit in order to repair a deficiency in its case

exposed by the Defendant ’ s cross-examination of the Plaintiff ’ s expert witness. But for the unanticipated adjournment of the trial when it could not be completed in the time originally scheduled, it would usually be impossible to do so – the 20 days for reply would normally expire after the end of the trial. [ 10 ] Admissions in the second category described above are sought to render admissible documents which, if the necessary features are proved, may be admissible under the Ares v. Venner exception to the hearsay rule.

The Defendant submits this is improper because the Plaintiff is attempting to cure a deficiency in its trial plan not recognized before the trial began. The alternative would be to call a person who can testify as to the characteristics of the documents. [ 11 ] Admissions in the third category are sought to avoid having to comply with the expert witness rules and having to call expert witnesses in person.

The Defendant submits this is obviously improper. [ 12 ] The fourth and fifth categories of admissions are sought in order to establish the results of communications between counsel concerning how the trial would proceed. The Defendant submits this is not the proper way for counsel to establish an agreement between counsel if such an agreement must be established. [ 13 ] I agree with most of the submissions made by the Defendant concerning the propriety of seeking admissions of this nature in a Notice to Admit in these circumstances.

I disagree only in respect of the second category of admissions. [ 14 ] In my view, it is not proper to require the Defendant to admit or deny the facts in the first category (items 1, 2 and 3 in the Notice to Admit). Evidence of the “ facts ” set out in those items would exist in documents which ought to have been disclosed in the discovery process. I assume they were not. In addition, to some extent the “ facts ” in those items are matters of opinion which it is not reasonable to expect the Defendant to admit.

Further, I agree with the Defendant that it would not be fair to permit the Plaintiff by this means to remedy a deficiency in its case which was revealed in cross-examination of an expert witness called by the Plaintiff. It is not too late for the Plaintiff to call the evidence if she perceives it is necessary to remedy the deficiency. I set aside items 1, 2 and 3 of the Notice to Admit. [ 15 ] In my view, items 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 are also not proper. Each of them relates to matters of expert opinion.

A Notice to Admit Facts cannot be used to circumvent the Rules relating to expert evidence. I set aside the Notice to Admit in respect of those items. [ 16 ] In my view, items 19, 20 and 21 are also improper. The “ facts ” identified in those items relate to points which would not normally be the subject of evidence. They are points which would normally be determined, if it was necessary to determine them, after counsel, as officers of the Court, advised the Court as to their communications with each other, assuming no privilege attached to those communications.

I set aside the Notice to Admit in respect of those items. [ 17 ] In my view, however, items 4, 6 and 8 are proper items for a Notice to Admit. By these items the Plaintiff seeks an admission that the hospital records which were disclosed in the Affidavit of Records have characteristics relevant to the Ares v. Venner analysis. In my view, it is not improper for the Plaintiff to seek such an admission in this manner.

As to the timing of service of the Notice to Admit, in the unique circumstances of this case (in particular that the trial has been adjourned sine die pending compliance with the Rules as to Expert evidence), recognizing the Notice to Admit items 4, 6 and 8 to be proper will cause no prejudice to the Defendant. [ 18 ] In the result, I order that the Notice to Admit be set aside in respect of all its items except items 4, 6 and 8. Heard on the 21 st day of June 2011. Dated at the City of Edmonton, Alberta this 12 th day of August 2011.

Brian R. Burrows J.C.Q.B.A. Appearances: Robert P. Lee for the Plaintiff Shawn Beaver for the Defendant