Many discipline tribunals have rules permitting a party to request that the other party admit non-contentious facts or the authenticity of documents. However, if the other party chooses not to be cooperative, they could refuse to make the admission with the only traditional consequence being liability to pay (or reduce their claim for) costs at the end of the hearing.
The recent Ontario Divisional Court decision in Khan v. Law Society of Ontario, 2024 ONSC 3092 (CanLII), may change that. The allegations were serious including participation in mortgage fraud and misappropriation of trust funds. The evidence involved many documents. The regulator served a request to admit upon the lawyer containing 484 paragraphs and agreement as to the authenticity of 310 documents. The lawyer responded with a generic refusal without responding specifically to the factual issues. The discipline tribunal, on a pre-hearing motion, found that the lawyer had not responded appropriately to the request to admit and ruled that the regulator could proceed at the hearing on the basis that the lawyer was deemed to admit the posited facts and the authenticity of the documents. At the hearing a finding was made against the lawyer. The appeal to the Appeal Tribunal and the Divisional Court on the use of the deemed admissions was unsuccessful.
The Court concluded that the lawyer refused to engage with the admissions process despite being given multiple opportunities to do so. Many of the requests to admit were not controversial as they related to publicly available documents or facts from the lawyer’s own files. There was no reviewable error in deeming the facts to be admitted and the documents to be authentic.
The Court substantially adopted the reasons of the Appeal Tribunal. Those reasons made the following points:
- There is no procedural unfairness or reversal of the onus of proof inherent in a rule providing for a request to admit. This was true even where the rule required that reasons be given for refusing to admit a fact or the authenticity of a document.
- Where a party admits (or is deemed to admit) the authenticity of a document, the requesting party is not prevented from challenging that document as a forgery. The admission only binds the party making (or deemed to be making) it.
- Admitting the authenticity of a document does not mean that the party is acknowledging the truth of its contents or its relevance to the hearing.
On a separate point, the Court did not require each member of the panel to physically sign a decision and reasons document where the chair signs it “on behalf” of the panel.
Regulators may wish to review whether their rules support a vigorous request to admit process, including an obligation on the parties to give reasons where a party does not admit the facts or the authenticity of the documents. Where the rules set out a request to admit process, the rules should provide for a means to make (or rule upon) deemed admissions where the process is not followed. While the request to admit process can be time consuming on its own, it should enable the significant narrowing of the issues at the hearing itself.