While COVID-19 continues to rear its head in the Ontario court system, there have been some teachable moments arising from the pandemic and the litigation resulting from it.
Recently, the Ontario Court of Appeal considered the suitability of a commonly utilized pre-trial procedure, a request to admit, being used in an untraditional manner. Ultimately, the Court decided that a request to admit could only properly be used in the pre-trial stages of litigation, and not during an appeal process. The backstory of the subject case is very interesting, and shows that the pandemic has not only presented challenges in all aspects of daily life, but has also given rise to novel legal challenges.
In Ash v. Ontario (Chief Medical Officer), on a motion before the Court of Appeal, Justice Zarnett noted that the moving party, Mr. Ash, had initially appeared before the Divisional Court with two other self-represented applicants seeking an order for mandamus compelling the Chief Medical Officer of Health of Ontario (“CMOH”) to issue a directive to all public health units that would require them to “permanently refrain” from administering a COVID-19 vaccine to any child under the age of 12.
His Honour noted that the Divisional Court had quashed Mr. Ash’s application for judicial review due to a lack of standing and an “absence of facts necessary to support the relief claimed.” Mr. Ash subsequently brought a motion seeking leave to appeal to the Court of Appeal.
After commencing his motion for leave to appeal, Mr. Ash served a request to admit upon the CMOH, and attempted to file it with the registrar. The registrar refused to file the form on the basis that Rule 51.02 (which provides for and governs requests to admit) does not apply on a motion for leave to appeal in the Court of Appeal.
Mr. Ash then brought a separate motion at the Court of Appeal for a direction to the registrar to file the request to admit, and that the request, and any response by the CMOH, would form part of the record before the court on the subsequent motion seeking leave to appeal.
CMOH argued that Rule 51.02 could not be resorted to on a motion for leave to appeal. Conversely, Mr. Ash relied upon the explicit language in the rule, which states that the form can be served “at any time” and that this language should extend to a proceeding that has reached the appellate stage.
Justice Zarnett flatly rejected Mr. Ash’s position and sided with the CMOH, noting in his endorsement:
“Rule 51 describes a process whereby proof of facts or documents may be streamlined. Its placement in the rules sheds light on when it can be resorted to, as [Rule] 51 appears immediately before [Rules] 52 and 53, which are headed “Trial Procedure” and “Evidence at Trial”. Moreover, the costs consequences provided for in [Rule] 51.04, which are an integral part of the request to admit scheme, expressly contemplate the request to admit process being undertaken before a hearing at which facts or documents may be proven.
“All of this strongly suggests that the process is intended for use prior to the fact determining hearing – a trial, or an application or motion for summary judgment that will determine the facts without a trial. To be sure, the process can be engaged “at any time” before that kind of a hearing – in the sense of being available in the early stages of the proceeding and not just post-discovery. But the process is one that is only available before that kind of a hearing.”
In closing, His Honour highlighted that a motion for leave to appeal proceeds on an already settled record and is not a hearing at which facts or documents that are not admitted can subsequently be proven. Therefore, the time for Mr. Ash to serve his request to admit would have been before the application for judicial review was heard in the Divisional Court, not afterwards.
Accordingly, the motion to have the request to admit filed by the registrar was dismissed, and the request itself was deemed invalid. The leave to appeal motion is pending before the Court of Appeal, which will no doubt result in another interesting decision.
 Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778.