Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether a payment by the plaintiff to the defendants was an investment or a loan.

• Plaintiff applied to withdraw deemed admissions after failing to respond to a Notice to Admit within 14 days.

• Defendants opposed the application, arguing insufficient evidence was provided to justify withdrawal.

• The court found the plaintiff’s application materials deficient and lacking substantive affidavit evidence.

• Established legal principles for withdrawal of admissions were applied, requiring a triable issue and supporting evidence.

• Defendants were awarded their costs at Scale B, amount to be assessed.

Facts and outcome of the case

Background and parties

Kam Oi Wong, as plaintiff, commenced proceedings against Jack Chan, Jason Chan, Tammy Khaner, and Ocean Village Farm Market Ltd., as defendants. The claim concerned a payment made by the plaintiff to the defendants. The plaintiff alleged this payment was an investment in a grocery store located in Surrey, British Columbia. The defendants did not dispute the payment but contended it was a loan, which they claimed had been repaid in full. The determination of whether the payment was an investment or a loan was central to the plaintiff’s asserted interest in Ocean Village Farm Market Ltd.

Procedural history and admissions

The litigation involved multiple, duplicative proceedings and significant judicial intervention. On March 27, 2025, the defendants served a Notice to Admit on the plaintiff’s solicitors, requesting admissions that the payment was a loan and that it had been repaid in full. The plaintiff’s solicitors failed to respond within the 14-day period, resulting in deemed admissions by operation of Rule 7-7(2). The defendants then filed an Amended Response to Civil Claim on April 14, 2025, expressly denying the plaintiff’s status as a shareholder and asserting the payment was a loan.

On April 15, 2025, the Amended Notice of Civil Claim was served on the plaintiff’s solicitors. Plaintiff’s counsel responded by email on April 16, 2025, disputing the validity of the Notice to Admit but did not provide an affidavit or substantive evidence. The defendants subsequently served a Notice of Application on May 8, 2025, seeking to dismiss the claim by summary trial. The plaintiff brought the present application to withdraw the deemed admissions on May 22, 2025.

Court’s analysis and reasoning

The court considered Rule 7-7 and relevant case law, which require a sufficient evidentiary basis to justify withdrawal of deemed admissions. The court noted the absence of evidence explaining why the plaintiff’s solicitors failed to respond to the Notice to Admit or disputing the truth of the admitted facts. The only evidence provided was an email from plaintiff’s counsel and an affidavit from an assistant in counsel’s office, which did not address the necessary issues. The court found these deficiencies fatal to the application.

Outcome and costs

The court dismissed the plaintiff’s application to withdraw the deemed admissions. The defendants, having been entirely successful on the application, were awarded their costs at Scale B, in an amount to be assessed. No damages were awarded, as the decision was limited to the procedural application and did not address the merits of the underlying claim.