Facts

Murray v Windsor Brunello Ltd, 2023 ABKB 375 concerns a dispute over construction defects brought forward by Donald and Linda Murray against a number of defendants. Two days before the commencement of trial, one of the defendants, Windsor Brunello Ltd. (“WBL”), served a Notice to Admit Facts (the “Notice”) on another co-defendant, Alberta Engineering Ltd (“AEL”). At approximately 11:00 pm the day before trial, AEL provided a reply to the Notice, allowing a majority of the documents to be admitted. The plaintiffs and another defendant, Luxus Haus Imports Ltd (“Luxus”), applied under Rule 6.37(8) of the Alberta Rules of Court, AR 124/2010, to set aside the Notice. 

Issues

1. Can a Notice made between specific parties be challenged by other parties in the action?
2. Must a Notice be served before the start of trial?
3. What considerations guide the court in setting aside a Notice under the Alberta Rules of Court?

Issue 1: 

Relevant Rules of Court include:

• Rule 6.37(8) gives the Court the ability to set aside a Notice;
• Rule 6.37(1) allows one party to serve a Notice on another party;
• Rule 6.37(7) states than an admission made under a Notice can only be used for the purpose for which it was given;
• Rule 6.37(2) requires that a copy of a Notice be served on all parties to the action; and 
• Rule 6.37(4) requires that a copy of the statement be served on all parties to the action. 

WBL argued that the plaintiffs and co-defendant had no standing to challenge the Notice because it pertained to WBL and AEL, as per rule 6.37(7). 

Sidnell J. rejected this interpretation. As Rule 6.37(2) and (4) compels service on all parties, Sidnell J. held this introduces the possibility that a Notice may be relevant to the other parties in an action. WBL had indicated that it was going to rely on the Notice as evidence of AEL’s liability to the plaintiffs and the exclusion of WBL’s liability. As such, Sidnell J. held that both the plaintiffs and co-defendant Luxus had standing to bring an application to set aside the Notice under Rule 6.37(8). 

Issue 2: 

Rule 6.37 does not explicitly prohibit the service of such Notice after a trial has started, but Rule 6.37(3) implies limitations. In TS v Stazenski, 2011 ABQB 508 Burrows J. acknowledged that the 20 day response period implies that the Notice should be served before trial begins to allow for a Reply. However, he allowed part of a Notice served less than 20 days before the commencement of a trial to stand, whereby recognizing the special circumstances that justify post-trial service. The “special circumstance” in TS was a lengthy adjournment in the middle of trial. 

The plaintiffs and Luxus argued that Rule 6.37 should be interpreted to limit the use of a Notice to 20 days before a trial starts. 

Sidnell J. did not find there is a strict prohibition on serving a Notice once the trial commences. She did recognize that timing plays a role in the analysis of whether to set aside a Notice under Rule 6.37.

Issue 3: 

Sidnell J. reviewed Andriuk v Merrill Lynch Canada Inc, 2011 ABQB 59 and Stazenski to create a non-exhaustive list of considerations when deciding whether to set aside a Notice per Rule 6.37(8):

1. Achieves the intention of the Rules of Court, as set aside in Rule 1.2;
2. Should be set aside for a reason set out in Rule 1.4(2)(b): for being contrary to law, an abuse of process or is undertaken for an improper purpose; or 
3. Affects trial fairness or is prejudicial to other parties.

WBL argued the Notice did not prejudice other parties as, should the Notice be set aside, it would introduce that information through cross-examination of the witness who admitted facts in the Notice, and because the plaintiffs and Luxus would have known and anticipated the evidence in the Notice. 

When analyzing if the Notice prejudiced parties in the action, Sidnell J. cited R v Lyttle, 2004 SCC 5 to highlight how a party’s ability to cross-examine at trial is a pillar of trial fairness. 

Given that admitting the Notice would effectively prevent the plaintiffs and Luxus from cross-examining the witness at trial, and therefore testing the information admitted therein, its admittance was held to prejudice those parties and undercut trial fairness. 

Conclusion

Sidnell J. set aside the Notice on grounds of prejudice and trial unfairness. In obiter, Sidnell J. also raised her “serious concerns” with how the Reply to the Notice was prepared on behalf of a party which was not a legal entity, and commented that proffering such evidence may be an abuse of process.