Double Costs Ordered For Unreasonable Response to "Notice to Admit"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.
In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for.  Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash.  The Defendants did not admit all of these facts requiring ultimate proof at trial.
In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38]         In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a)      the truth of the fact is subsequently proved;

(b)      the fact was relevant to a material issue in the case;

(c)      the fact was not subject to privilege;

(d)      the notice to admit was not otherwise improper;

(e)      the notice to admit was reasonably capable of evaluation within the time required for response; and

(f)       the refusing party had no reasonable grounds for believing that it would prevail on the matter.

…

[43]         While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44]         Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).