Designing the Impossible: A Perfect Request to Admit Rule

The recent decision in Khan v. Law Society of Ontario, 2024 ONSC 3092 (CanLII), has sparked renewed interest by regulators of professions in whether the “request to admit” process can have the effect of streamlining discipline hearings. The Divisional Court upheld a discipline finding based, in large part, on deemed admissions by the lawyer facing discipline who had refused to make admission on the facts contained in a 484-paragraph request to admit that included 310 documents. The discipline hearing panel ruled the facts in the request to admit were deemed to be admitted because the lawyer had failed to properly engage with the process. In essence, the lawyer had responded with a blanket denial (based on legal arguments) without responding specifically to the assertions of fact or the authenticity of the individual documents.

Previously, using requests to admit in the disciplinary process resulted in limited success for several reasons; perhaps most prominent was that the consequences of a blanket denial was inadequate. Simple exposure to cost consequences, for registrants at least, was only theoretical. If the allegations were proved, the registrant would generally face significant cost consequences in any event, often based on a tariff or a commonly used formula (e.g., two thirds of the regulator’s expenses). If the allegations were not proved, it would be rare for the registrant to be entitled to costs, which are usually only awarded if the regulator had no basis for initiating the hearing in the first place.

The request to admit process involves a lot of work. Carefully and systematically framing the statements of fact and listing the documents, and then responding to counter-requests, takes time and effort, especially where the registrant is unlikely to be responsive. Responding to a 484-paragraph request to admit that includes 310 documents is daunting, even for a lawyer. Where a party is self-represented, the task could be overwhelming.

The process can also be abused. Serving multiple requests to admit is not an uncommon strategy for registrants trying to avoid a streamlined process focussed on narrowing the issues. For example, in Law Society of Ontario v. Murphy, 2024 ONLSTH 51 (CanLII), the lawyer served ten requests to admit on the Law Society “essentially asking for admissions that this application is ill-founded because it is based on the misconduct of many players in the justice system, including the government, several levels of court and the Law Society.” That same lawyer, in response to a request to admit by the regulator, “sent his 74-page response … admitting most of the Law Society’s facts but adding extensive commentary and narrative reiterating his allegations and theories about misconduct in the justice system.”

The panel in Murphy also had concerns about the regulator’s request to admit, stating:

In numerous places the Law Society asks for admissions of fact to statements that are not factual at all. Many paragraphs make statements that do not constitute evidence, but rather inferences from evidence, characterizations of facts, commentary on the respondent’s state of mind or attitude, or indeed summaries of events or groups of events that are imprecisely described and therefore not susceptible to an admission.

However, the Khan decision may point to an approach that could reinvigorate the request to admit process. Two features are significant:

  1. Unlike the civil rules of procedure, under the Law Society rule a party must provide reasons for denying the truth of the fact or the authenticity of the document.
  2. The Court upheld the Law Society’s approach of deeming admissions to have been made where the registrant did not provide appropriate reasons for issuing a blanket denial. Thus, the finding against the lawyer at discipline was largely based on the requested admissions he denied.

 

The Court acknowledged the regulator’s fairness while applying that additional enforcement mechanism, for example, the regulator provided several opportunities for the registrant to revise his response to the request to admit. Additionally, the motion panel “expressly left it open to Mr. Khan to rebut any deemed admission or document by raising contradictory evidence at the hearing of the application on the merits.”

To advance the debate on how to make the process effective, yet fair, and to limit the misuse of the process, I respectfully suggest that rules of procedure for requests to admit might include the following features:

  1. Requests should be limited to statements of fact and the authenticity of documents.
  2. Regulators should be required to attach a practice direction from the discipline committee with any requests to admit. The practice direction should explain in plain language the nature and purpose of the process and should provide examples illustrating acceptable factual statements and examples of improper requests and refusals (e.g., argument or a statement of legal position).
  3. A party should only be able to serve one request to admit in a proceeding unless permission of the Discipline Committee is obtained or there is consent from the other party.
  4. A request to admit should be limited to X (e.g., 100) single statements of fact and X (e.g., 100) documents unless leave is obtained or there is consent.
  5. A request to admit should be served at least Y (e.g., 60) days before [or after] the pre-hearing conference unless leave is obtained or there is consent. The request and response should be provided to the presiding officer at the pre-hearing conference by the requesting party.
  6. A party who is not satisfied with the response to a request to admit may bring a motion at least 30 days prior to the hearing (unless leave is obtained or there is consent) to compel a proper response, failing which the facts are deemed to be admitted or the documents are deemed to be authentic.
  7. Any request for leave under the rule can be sought by a motion in writing.

 

This approach presumes that leave will be readily granted in appropriate cases. For example, in complex cases more than 100 statements of facts and the authenticity of more than 100 documents might be completely appropriate. Similarly, in complex cases, it may be more efficient to issue multiple requests to admit, perhaps according to categories (e.g., client files, social media posts, financial records). Further, in some cases the timing of the request to admit should be deferred (e.g., where there are productive discussions between counsel, and it is hoped that a resolution could be achieved at a pre-hearing conference).

Regulators should also monitor whether the requirement to provide reasons for not accepting a statement of fact adds undue complexity to the process or results in frequent motions disputing those reasons.

Along the same lines, consideration should also be given to whether requests to admit facts should be treated differently than requests to admit the authenticity of documents. Where a discipline panel has experience with unmanageable requests to admit facts, it might limit that option to cases where a party is not participating in the pre-hearing process. In that way, the requests to admit facts do not compromise the efficiency of the process and will assist in avoiding proof of uncontentious facts. For example, the Health Professions Discipline Tribunals Rules of Procedure provide for the following:

12.3.7 A request to admit the truth of facts under this rule may only be delivered where the other party, after receiving notice, has not indicated any intention to participate in the proceeding or the Tribunal has given permission. A request to admit the authenticity of documents may be delivered in any circumstance.

The potential for the request to admit process to narrow the issues in dispute for discipline hearings has increased significantly as a result of this decision.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.

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