Western Group Sales Company Inc. v.  
Freshslice Holdings Ltd.,  
2022 BCSC 1005  
Date: 20220615  
Docket: S214035  
Registry: Vancouver  
Western Media Group Sales Company Inc.  
Freshslice Holdings Ltd.  
Before: Master Robertson  
Reasons for Judgment  
Counsel for the Plaintiff:  
D.W. Gibbons  
T. Holer  
Appearing on his on behalf and on behalf of  
the Defendant:  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
June 6, 2022  
Vancouver, B.C.  
June 15, 2022  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
Page 2  
Table of Contents  
BACKGROUND......................................................................................................... 3  
WITHDRAWAL OF ADMISSIONS ............................................................................ 8  
Applicable Law ....................................................................................................... 8  
Inadvertence....................................................................................................... 9  
Admissions not within the knowledge of the party ............................................ 12  
Whether facts are or may be untrue, or if it is a triable issue ............................ 12  
Prejudice........................................................................................................... 13  
Delay ................................................................................................................ 14  
SUMMARY JUDGMENT APPLICATION ................................................................ 16  
The Applicable Law.............................................................................................. 17  
Discussion............................................................................................................ 18  
SUMMARY OF ORDERS MADE............................................................................. 20  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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This application involves a debt claim for advertising services undertaken by  
the plaintiff, at the request of the defendant.  
On April 25, 2022, the plaintiff filed an application for judgment in the amount  
of $111,877.15 pursuant to R. 9-6, relying on deemed admissions made after the  
defendant failed to respond to a notice to admit dated February 16, 2022 containing  
some 60 admissions and seeking to have the authenticity of various documents  
admitted, namely Purchase Orders and invoices.  
By cross application, the defendant seeks to have three of those 60  
admissions set aside.  
Even if the cross application is successful, the plaintiff wishes to proceed with  
its application for judgment saying that its claim is established on the basis of the  
admissions that are not being disputed. In short, the plaintiff submits that every  
element of the notice of civil claim is now established given the admissions.  
During the hearing, I first dealt with the application for the withdrawal of the  
admissions so that the judgment application would then be based on the admissions  
as determined by that application.  
During the hearing I gave my decision to withdraw those admissions, with a  
very brief basis for that decision, and reserved the right to provide full reasons  
contemporaneously with the reasons for judgment on the R. 9-6 application, which I  
now do.  
By way of background, the defendant retained the plaintiff to facilitate the  
placement of advertising of its businesses, which primarily operate under the trade  
name FreshSlice Pizza, on various websites/hosts, such as YouTube, Tik Tok and  
SPARK Audience.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
[8] The plaintiff has billed the defendant approximately $200,000 for such  
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services. The defendant has paid $98,028.59 on those invoices, leaving outstanding  
accounts of some $111,877.15.  
The notice of civil claim is framed as a simple one for unpaid invoices,  
claiming that the services as set out in the invoices were rendered, and  
particularizing which invoices remain unpaid, totalling the above amount.  
[10] The basis on which the defendant opposes the claim, and counterclaims as  
against the plaintiff, is plead as follows:  
In the Response and Counterclaim  
3. The plaintiff represented that there would be only a maximum of 10-15%  
commissions on all placements made.  
4. The plaintiff’s work, if done (which is denied), resulted in no discernable  
benefit to the plaintiff.  
5. In discussing the lack of any visible evidence that any work was done by  
the plaintiff, it became apparent that little or none of the defendant’s money  
was spent on placing media advertisements as agreed, but rather it was kept  
by the plaintiff as “commissions”.  
7. … the defendant is out $98,028.59 without any explanation of what  
portion of that, if any, went to actual advertisements to benefit the defendant.  
In the Counterclaim (in addition to the above):  
8. The defendant paid the Funds to the plaintiff based on the plaintiff’s  
representations that the funds would be put to advertising use to the benefit  
of the defendant.  
9. Further, it was a term of the agreement between the parties that the  
Funds would be put to advertising use to the benefit of the defendant.  
10. The Funds were not put to the agreed upon use and the plaintiff has  
provided no explanation to the defendant.  
11. As a result of the plaintiff’s misrepresentation and breach of contract, the  
defendant has suffered loss and damage.  
Part 2: Relief Sought  
1. Damages for Breach of Contract and Misrepresentation  
Part 3: Legal Basis  
1. The parties entered into an agreement and, in breach of that agreement,  
the plaintiff failed to provide the agreed-upon services despite charging the  
defendant for same.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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[11] The way that the defendant describes their defence and counterclaim in this  
application is that it was not invoiced an amount reflecting the proper commission  
rate as agreed to in the services agreement, namely 10% to 15% of the amounts  
they paid to third party hosts. The defendant says that the services agreement was  
on a commission structure, meaning that for every dollar they spent, they expected  
that 85 cents would go to third party hosts, who provide the value in the advertising.  
The defendant submits that, despite requests, the plaintiff has not provided any  
particulars of the amounts paid to third party hosts so that the defendant can  
determine if they were invoiced in accordance with the agreement.  
[12] On that basis, the defendant pleads that no further funds are owing and, by  
counterclaim, seeks the return of the $98,028.59 that it has paid to date on invoices  
[13] On February 16, 2022, the plaintiff issued to the defendant a notice to admit,  
in the proper form, containing some 60 admissions and attaching approximately 300  
pages of documents for their admission as to authenticity.  
[14] As noted, there was no response to that notice to admit within the 14 days,  
and the admissions were deemed to have been made.  
[15] The defendant is self represented. The representative who appeared before  
the court on this application is Mr. Horler, “Vice President of Legal Affairs”, a title he  
has had for some 18 months. He is not a lawyer and advised the court, although  
this was not in affidavit form, that he has no legal training such as paralegal or other  
legal studies.  
[16] The defendant says that notwithstanding the lack of formal legal training for  
Mr. Horler, the defendant’s litigation experience is of note, exhibiting the court  
services printout showing some 51 actions involving the defendant and its related  
companies, with 8 for this particular defendant, and 4 where it appears this  
representative filed court documents on behalf of the defendant, including one that  
involved a 10 day trial where Mr. Horler was noted to be the representative for the  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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defendant’s related companies, the reasons for that are indexed at 0923063 BC Ltd.  
v. JM Food Services Ltd., 2019 BCSC 553.  
[17] As the plaintiff frames it, the defendant chooses when to have counsel and  
when not to, and chose not to have counsel in this matter. That choice does not  
provide the defendant with absolution, or a basis for the court to exercise its  
discretion to remedy the effect of its lack of understanding whether that be as to the  
effect of a notice to admit, or in the drafting of pleadings.  
[18] Mr. Horler submits that his experience is exaggerated. He advised the, again  
without any affidavit materials on this point, that his job involves him looking at legal  
proceedings when they come in and assigning to counsel. He will sometimes  
handle matters involving franchise agreements himself because of his specific  
knowledge of the franchise agreements they use, which was the issue in the  
09230636 BC Ltd. v. JM Food Services Ltd., supra, but he is ultimately nothing more  
than a conduit between the law firm that usually represents the Freshslice  
companies, and Freshslice, to ready matters for court, including through document  
[19] In any event, the defendant acknowledges receiving the notice to admit  
package sometime during the week of February 14, 2022, and seems to have  
understood its general purpose. However, Mr. Horler deposes that he misread the  
notice to admit, and cover letter, believing that he had to respond 14 days prior to  
trial, which is scheduled for November 15, 2022. He believed he was still well within  
time to respond.  
[20] The defendant has, since the application for judgment was delivered,  
reviewed the notice to admit and documents as attached, and has now formally  
admitted 57 of the facts, and the authenticity of all the documents, in writing.  
[21] The defendant seeks to have the following three admissions withdrawn:  
a) #58 the defendant owes the Plaintiff $111,877.15;  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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b) #59 at no time did the plaintiff make any representation of any kind to  
the defendant as pled in para. three of the response to civil claim or para.  
three of the counterclaim; and  
c) #60 the defendant has suffered no damages as alleged, or at all.  
(the “Disputed Admissions”)  
[22] The other deemed admissions, which the defendant takes no issue with and  
confirmed such admissions, include the following which are relevant to the  
application for judgment:  
a) The plaintiff and the defendant entered into an agreement for the provision  
of advertising placement services set out in the Purchase Orders (as  
b) Each of the Purchase Orders “sets out that Western Media Group will  
provide and Freshslice will pay for advertising placement services  
totalling…[the amount in each Purchase Order]”;  
c) The defendant’s representative signed each of the Purchase Orders;  
d) The plaintiff placed advertisements with third parties as required by the  
Purchase Orders;  
e) Invoices were issued to the defendant, some of which were paid;  
f) The total amount outstanding in connection with the unpaid invoices is  
$111,877.15 ;and  
g) Demand for the outstanding amount was made in writing to the defendant.  
[23] Based upon those admissions, I summarize the Purchase Orders and unpaid  
invoices under them as follows:  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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Purchase Orders  
Unpaid Invoices Corresponding to  
Purchase Order  
(which revised and  
updated WMG-08-  
Withdrawal of Admissions  
[24] The defendant argues that the Disputed Admissions would never have been  
admitted, as they are the crux of its defence and its counterclaim, namely that they  
dispute they owe the amount claimed because at no time has the plaintiff provided  
evidence as to what they paid third parties for advertising services.  
Applicable Law  
[25] In terms of the applicable law on such an application, the parties do not  
disagree that such applications are governed by R. 7-7(5), which provides that an  
admission can only be withdrawn by consent, or court order.  
[26] The defendant relies on the master’s decision in Nagra v. Cruz, 2016 BCSC  
2469, which was in fact appealed, with the appeal being reported at 2017 BCSC  
347. As set out by both the master hearing the original application and the appeal  
judge, the test is that contained in Sidhu v. Hothi, 2014 BCCA 510:  
[5] The legal test to be applied where leave is sought to withdraw an  
admission is whether there is a triable issue which should be determined on  
the merits and not disposed of by an admission of fact. The parties agree that  
consent is a triable issue, but the analysis does not end there. The overriding  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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factor is whether the interests of justice justify the withdrawal of the  
admission. The discretion to grant leave to withdraw an admission is broad  
and unfettered, subject to the discretion being exercised judicially. To that  
end, the court is required to balance the prejudice that would flow from either  
refusing or granting leave to withdraw the admission. The exercise of  
discretion on such an application is highly fact-specific.  
[6] The factors that should be considered by the court in determining what  
result is in the interests of justice are:  
a) whether the admission was made inadvertently, hastily or without  
knowledge of the facts;  
b) whether the fact admitted was or was not within the knowledge of  
the party making the admission;  
c) where the admission is one of fact, whether it is or may be untrue;  
d) whether and to what extent the withdrawal of the admission would  
prejudice a party; and  
e) whether there has been delay in the application to withdraw the  
admission and any reason offered for such delay.  
See Sidhu v. Hothi, 2014 BCCA 510.  
[27] In order to exercise my discretion by undertaking the necessary balancing of  
prejudice and determine whether withdrawing the admissions is in the best interests  
of justice, I will address each of those factors:  
[28] The defendant’s representative deposes that this admission was made  
inadvertently in that he misread and misunderstood the document “to say that all of  
these documents must be reviewed and admitted/denied no later than 14 days  
before the Supreme Court Trial”.  
[29] In support of its argument that the failure to respond in time was made  
deliberately, counsel for the plaintiff points to his letter enclosing the notice to admit  
which very clearly states “please note that pursuant to Rule 7-7(2) the truth of a fact  
or authenticity of a document specified in the attached notice to admit will be  
deemed to be admitted unless within 14 days after today Freshslice serves on  
myself a written statement” which complies with the rules.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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[30] The letter also clearly points out that the plaintiff will rely on strict compliance  
with the timeline for service and recommends that legal advice be sought. The  
standard form of notice to admit was used, with the same warning.  
[31] The plaintiff argues that the wording of the defendant’s affidavit evidence as  
to the explanation for his confusion lacks an air of reality given the clear wording in  
these documents. The defendant takes great offence to that characterization. He  
has sworn the statement, and he says it is true. He did not intentionally disregard the  
[32] The plaintiff relied on Ashton v. Hales 2017 BCSC 1928, where a self  
represented litigant sought to withdraw admissions. The court made a number of  
comments about self represented litigants in this respect, at paras 36-43 and 46-47:  
36 With respect to the Notice to Admit, she now seeks to withdraw her  
admissions at paragraphs 3 and 5. She submits that as a self-represented  
litigant she is not very familiar with the Supreme Court Family Rules, B.C.  
Reg. 169/2009, and the deadlines created by them. She seeks under Rule 9-  
6(5) to withdraw deemed admissions with leave or by consent. The  
respondent does not consent.  
37 The claimant argues that she has continually denied the facts stated in  
paragraphs 3 and 5 of the Notice to Admit and that she did not know the  
consequences of failing to respond in time. The facts admitted are material to  
the issue before the court and she argues should be determined on the  
evidence at trial rather than by a default determination under the rules. She  
notes that to not permit her to withdraw the admissions would be unjust,  
given their significance to her claim.  
38 The Notice to Admit clearly states that if she does not respond within 14  
days then she is deemed to have admitted the facts in it. She testified that  
she read it upon receipt and did understand that if she did not respond she  
was deemed to admit the facts alleged.  
39 With respect to admission 3, the respondent did not in the Notice to Admit  
seek an admission that the parties never lived in a marriage-like relationship,  
an issue of mixed fact and law. The admission sought was purely factual, that  
is, that the parties never lived in the same residence together until they  
moved into Medeek on July 27, 2011.  
40 Admission 5 is an admission that the claimant has never paid any  
mortgage payments, taxes or insurance for Medeek since it was purchased.  
There is nothing in the evidence that contradicts this.  
41 The claimant is not an inexperienced or unsophisticated litigant. She has  
had two lawyers of record. On her own she has filed affidavits and provided  
will-say statements, along with financial and other disclosure. She has sought  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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disclosure from the respondent. She also prepared and filed a Trial Brief and  
has appeared in person or by telephone for a Judicial Case Conference, for  
the hearing of two applications, at her examination for discovery and three  
times for the Trial Management Conference. In addition, she stated in an April  
22, 2017 email to the respondent's counsel that: "I have had many  
conference calls, and conference meetings with [Lawyers in] and out of our  
area. I am well aware of my rights pertaining to this Trial."  
42 While special concerns arise where a party is self-represented, those  
concerns do not lead to a disregard for the rules that govern our courts. In  
September 2006, the Canadian Judicial Counsel adopted a Statement of  
Principles on Self-represented Litigants and Accused Persons (Ottawa:  
Canadian Judicial Council, 2006). In Pintea v. Johns, 2017 SCC 23, the  
Supreme Court of Canada formally endorsed those principles (para. 4).  
43 The following extracts from the Statement of Principles are relevant:  
1.Judges and court administrators should do whatever is  
possible to provide a fair and impartial process and prevent an  
unfair disadvantage to self-represented persons (p. 4).  
2.Self-represented persons should not be denied relief on the  
basis of a minor or easily rectified deficiency in their case (p.  
3.Judges should ensure that procedural and evidentiary rules  
are not used to unjustly hinder the legal interests of self-  
represented persons (p. 7).  
1.Self-represented persons are expected to familiarize  
themselves with the relevant legal practices and procedures  
pertaining to their case (p. 9).  
46 The Rules exist for a reason. Their object is found at Rule 1-3. They  
impose structure, fairness and bring efficiency to litigation in the Court. They  
are not to be disregarded merely because a party chooses, or has no choice,  
but to represent themselves. To do so would be unfair to the other parties  
and raise the risk of injustice.  
47 In this case the claimant was neither ignorant of, nor inexperienced with  
the process. She knew and understood the effect of failing to respond to the  
Notice to Admit and chose not to do so. The fact that she is self-represented  
does not absolve her of the responsibility to comply with the Rules,  
particularly where she acknowledges she understood what was required.  
Notices to Admit exist to facilitate the object of the Rules. A party is entitled to  
use the Rules accordingly in the knowledge that the parties are bound by  
them. In my opinion, it would, in the circumstances of this case, be unfair to  
permit the claimant to withdraw her admission. I therefore decline to permit  
such withdrawal.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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[33] The distinction between Ashton and the case at bar is that Mr. Holer does not  
indicate that he understood his obligations, notwithstanding the plaintiff’s argument  
that that explanation strains credulity. As noted in Ashton, the claimant knew and  
understood the effect of failing to respond. She indicated that she was “well aware  
of my rights pertaining to this Trial”. As such, being self-represented did not absolve  
her of the obligations to comply.  
[34] Here, while Mr. Horler and the defendant do have experience in litigation, I  
accept his explanation that he misunderstood the timing requirement.  
[35] I also note that the Disputed Admissions were on page five of the notice to  
admit, after some 57 factual and non-contentious facts were listed, under a heading  
“unpaid invoices” such that it would be simple to have not appreciated the significant  
of these three points which were included, and are of a different character.  
Admissions not within the knowledge of the party  
[36] The defendant’s representative says that he had to consult other parties  
within the defendant’s employ, such as the CEO, about some of these facts. He was  
not the party to make the admission. In making this argument, the defendant  
misconstrues this test. The issues in dispute were within the corporate defendant’s  
knowledge. However, I note that the three Disputed Admissions are more in the  
nature of issues to be determined by this court, namely that the amount claimed is  
due owing, that there have been no misrepresentations, and no damages suffered  
by the defendant.  
Whether facts are or may be untrue, or if it is a triable issue  
[37] This factor is described somewhat differently in each of Sidhu and Nagra, with  
Nagra describing it as whether the facts are true or not (at para. 6), and in Sidhu in  
which it is described as whether or not these facts give rise to a triable issue (at  
para. 11).  
[38] As I have already noted, the Disputed Admissions are not purely factual, but  
are admissions going to the ultimate issues or legal conclusions sought to be  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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determined in this action, specifically the counterclaim which seeks a remedy for the  
alleged misrepresentation as to the terms of the services agreement.  
[39] The plaintiff argues that the matter can be determined without these  
admissions being made at all, and as such they cannot be ones that raise a triable  
issue, which the plaintiff describes as being whether or the services were rendered  
in accordance with the purchase orders, and invoiced accordingly. When  
considering only the notice of civil claim, that may be the case. It is not as clear  
when considering the counterclaim.  
[40] The defendant argues that there will be no prejudice to the plaintiff if these  
admissions are withdrawn. In this respect, discoveries have not yet been completed,  
and a trial date is scheduled to resolve these issues. The defendant says quite  
convincingly that it is looking forward to that day in court.  
[41] I do note that discoveries had been scheduled for March 7, 2022, but were  
adjourned by the plaintiff when the deemed admissions were made.  
[42] In this respect, the plaintiff emailed the defendant on March 3, 2022 to cancel  
the discovery, writing that the reason was because the defendant had not responded  
to the notice to admit “within the timeline required under the Rules and therefore the  
truth of the facts contained therein and the authenticity of the documents attached  
thereto have deemed to be admitted.”  
[43] There was no response to that email.  
[44] In any event, there is no evidence before the court that the discoveries cannot  
be rescheduled if necessary before the November 15, 2022 trial date. The  
defendant says that it would like to proceed with discoveries forthwith.  
[45] In contrast, the defendant will lose the ability to advance the entirety of its  
counterclaim if the Deemed Admissions are not withdrawn given that they do  
dispose of the ultimate issues for determination in the counterclaim.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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[46] The defendant has not tendered evidence as to when it became aware of the  
effect of his failure to respond to the notice to admit, resulting in the deemed  
[47] The plaintiff argues that the defendant knew as of the March 3, 2022 email,  
when counsel advised that he would be cancelling the discovery because of those  
deemed admissions.  
[48] There can be no doubt that the defendant would have known as to the effect  
of the admissions when it received the April 25, 2022 notice of application for  
[49] Following that delivery, the defendant sent a response to the notice to admit  
on May 9, 2022, admitting all facts but the Disputed Admissions, and admitting to the  
authenticity of the documents, in what appears to be an effort to correct the  
oversight. As such, the plaintiff knew that the defendant did not intend to make the  
Disputed Admissions at that time.  
[50] The defendant then filed a response to the judgment application on May 10,  
2022 raising the issue that the Disputed Admissions were done through  
[51] The hearing of the judgment application was adjourned from May 13, 2022,  
providing the defendant an opportunity to file its cross application for withdrawal of  
the admissions on May 24, 2022.  
[52] I note that that application was not filed in time, and is marked “force filed” as  
being accepted by the registry for filing notwithstanding the failure to comply with the  
Rules. The returnable date was May 30, 2021, so that it could be heard with the  
plaintiff’s judgment application, with both applications then being adjourned to this  
hearing date.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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[53] The application to withdraw the admissions was, therefore, filed just over 2  
months from the March 3, 2022 email, and one month from the notice of application.  
[54] There is no explanation from the defendant as to why it did not act sooner in  
the affidavit material, or immediately upon receiving the March 3, 2022 email to  
address its apparent oversight. In submissions, Mr. Horler suggested he did not  
understand that there was a reliance on admissions until he received the notice of  
application and, until then, he was expecting this matter to proceed to trial in  
[55] It is notable that this action is being prosecuted by the plaintiff with some  
[56] The notice of civil claim was filed April 23, 2021, with pleadings being closed  
May 14, 2021. The plaintiff attempted to obtain default judgment at that time, which  
was rejected because of the filing of the response to notice of civil claim which had  
in fact been done. A trial date was obtained quickly.  
There have been some issues with the defendant not being as responsive as  
the plaintiff expected. For example, the plaintiff filed an application in July 2021 for  
particulars to be given as to the misrepresentations raised in the counterclaim, with  
that order then going by consent, and then later to compel production of a list of  
documents in January 2022 when it was not delivered in accordance with the Rules.  
[58] In other words, the plaintiff argues that there is a pattern of delay in this  
matter, with the defendant responding only once the court process has been  
engaged, which the plaintiff has been relatively quick to do.  
[59] If trial does proceed in November, it will be within 19 months of the claim  
being commenced.  
Decision on Withdrawal of the Dispute Admissions  
[60] While I appreciate the frustration that the defendant’s approach, or failure to  
respond as promptly as the plaintiff may have liked, I am satisfied that the failure to  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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reply to the notice to admit was done through inadvertence. I accept the defendants  
sworn evidence in that regard.  
[61] I am also satisfied that there was no inordinate delay in seeking to have the  
admissions withdrawn and that the balancing of the prejudice ultimately favours the  
[62] Overall, the plaintiff argues that being self represented is not a defence to  
compliance with the rules. I agree. I also agree that the defendant here is not the  
typical self represented party without any litigation experience. It is one that  
chooses to retain counsel in some cases, and not in others. It chose here to not  
have counsel. That does not give it a pass to disregard the rules of court.  
[63] However, having regard to the overall circumstances I am satisfied that it is  
not in the best interests of justice to have the merits of both the action and, more  
significantly, the counterclaim determined on the basis of the Disputed Admissions  
which the defendant has deposed were made inadvertently.  
[64] In this respect, I note that the defendant has now reviewed the admissions  
and made the majority of them, some 57 of 60, which will either make the matters  
determinable on the extant judgment application, or will no doubt have the effect of  
ensuring that discoveries and trial can be streamlined if the matter is not so  
determined. Doing so suggests that the defendant is taking its obligations in this  
litigation seriously.  
[65] Further, it is not too late to reset discoveries so that the trial can proceed as  
scheduled on November 15, 2022, on any outstanding issues.  
Summary Judgment Application  
[66] By their notice of application, the plaintiff seeks judgment in accordance with  
R. 9-6, relying on the Deemed Admissions. The plaintiff argues that, even with the  
Disputed Admissions being withdrawn, the remaining admissions are sufficiently  
dispositive of the issues in dispute in the notice of civil claim.  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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The Applicable Law  
[67] The defendant did not set out any law in its response to notice of application  
as to the merits of a R. 9-6 judgment application, or indicate any disagreement with  
the statement of law as set out by the plaintiff in this respect.  
[68] The plaintiff relies upon the principles set out in Beach Estate v. Beach, 2019  
BCCA 277 at paras. 48-49:  
48 Rule 9-5 is a challenge on the pleadings. Rule 9-6 is a challenge on a  
limited review of evidence. A defendant can succeed on a Rule 9-6  
application by showing the case pleaded by the plaintiff is unsound or by  
adducing sworn evidence that gives a complete answer to the plaintiff's case:  
B & L Holdings Inc. v. SNFW Fitness BC Ltd., 2018 BCCA 221 at para. 46,  
quoting Progressive Construction Ltd. v. Newton (1981), 25 B.C.L.R. 330 at  
335; International Taoist Church of Canada v. Ching Chong Taoist  
Association of Hong Kong Ltd., 2011 BCCA 149 at para 14. Such evidence  
generally is adduced in the form of an affidavit. If the court is satisfied that the  
plaintiff is bound to lose or the claim has no chance of success, the defendant  
must succeed on the Rule 9-6 application: Canada v. Lameman, 2008 SCC  
14 at paras. 10-11. Conversely, if the plaintiff submits evidence contradicting  
the defendant's evidence in some material respect or if the defendant's  
evidence in support of the Rule 9-6 application fails to meet all of the causes  
of action raised by the plaintiff's pleadings, the application must be dismissed:  
B & L Holdings Inc. at para. 46, quoting Progressive Construction Ltd. at 335.  
49 Although an application under Rule 9-6 invokes the court's consideration  
of evidence, it is not a summary trial: Century Services Inc. v. LeRoy, 2015  
BCCA 120 at para. 32. The judge is not permitted to weigh evidence on a  
Rule 9-6 application beyond determining whether it is incontrovertible: any  
further weighing may only be done in a trial: Tran v. Le, 2017 BCCA 222;  
Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 at paras. 8-  
[69] In Balfour v. Taraskenco 2016 BCCA 438, the test was described as follows  
at paras. 41-43:  
41 Rule 9-6 of the Rules governs the procedure for summary judgment. The  
purpose of summary judgment is, promptly and inexpensively, to weed out  
and prevent meritless claims or defences from proceeding to trial. To  
succeed on a summary judgment application, the party seeking summary  
judgment must show there is no genuine issue of material fact that requires a  
trial for determination: Canada (Attorney General) v. Lameman, 2008 SCC  
14, paras. 10-11.  
42 On a summary judgment application brought against a defendant, the  
essential question is whether the defendant is bound to lose. If so, summary  
Western Group Sales Company Inc. v. Freshslice Holdings Ltd.  
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judgment should be granted to avoid unnecessary waste of time and  
expense. Where the defendant relies upon an asserted defence to resist the  
application, that defence must be bona fide in nature. This means that the  
proposition of law upon which the defendant relies must have a bona fide  
foundation in fact: North Vancouver (District) v. Babyeats Ltd., 2014 BCSC  
890 at paras. 44 and 46; Bank of Montreal v. Yow (1986), 16 B.C.L.R. (2d)  
249 at 253-255 (C.A.).  
43 Each party must "put its best foot forward" when presenting or resisting a  
summary judgment application: Lameman at para. 11. Accordingly, under  
Rule 9-6, to the extent reasonably possible, each must provide evidence that  
the other's claim is factually without merit, in whole or in part. Where the  
evidence presented conflicts, summary judgment is unlikely because the  
court's role is not to weigh evidence and make factual determinations. It is to  
determine whether there is a bona fide triable issue. However,  
uncorroborated "bald assertions" of fact will likely not prevent summary  
judgment, unless the facts in question are not within the asserting party's  
knowledge or control and there is a real possibility that they will be  
discoverable as the trial proceeds: International Taoist Church of Canada v.  
Ching Chung Taoist Association of Hong Kong Limited, 2011 BCCA 149 at  
paras. 9, 12-15; Southeast Toyota Distributors Inc. v. Branch, [1997] B.C.J.  
No. 1426 at para. 62 (S.C.), aff'd (1998), 47 B.C.L.R. (3d) 1 (C.A.).  
[70] I have set out the admissions from the notice to admit above. In summary, by  
virtue of those admissions, there is no longer any dispute that, by signing the  
purchase orders the defendant agreed to pay for advertising placement services in  
the amount of each Purchase Order and that those services were then, as admitted  
by the defendant, provided by the plaintiff.  
[71] Thus, the issue for determination is whether or not the defendant is “bound to  
lose” in that there is “no genuine issue of material fact that requires a trial for  
determination” in light of those admissions.  
[72] As it is framed in the pleadings, the defence to the claim for judgment is,  
firstly, that the services were not provided. That is no longer disputed.  
[73] Secondly, the defendant, in both its response and counterclaim, plead that  
there was a misrepresentation by the plaintiff that the amounts they would charge  
would be based on a percentage of what they were billed by the third-party hosts.  
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[74] That fact is, as a result of the admissions, now at direct odds with the terms of  
agreement set out and admitted to be in place, namely that the defendant agreed to  
pay for advertising placement services in the amount of each Purchase Order.  
[75] The court’s ability to weigh evidence on applications for judgment under R. 9-  
6 is limited. However, there is an obligation of each party to put their “best foot  
forward” and provide evidence that the other’s claim is factually without merit, so that  
the court can determine if there is a bona fide triable issue.  
[76] The plaintiff’s evidence that the representation claim is bound to fail is the  
admission as to the service terms being based upon the Purchase Order, and  
admission that those services were provided. The only evidence put forward by the  
defendant to support the fact that there was a representation as alleged is the  
following sentence in Mr. Harler’s affidavit:  
The plaintiff represented that there would be only a maximum of 10-15%  
commission on all placements made.  
The defendant paid the Funds to the plaintiff based on the plaintiff’s  
representations that the Funds would be put to advertising to the benefit of  
the defendant.  
[77] As noted in Balfour, the proposition that there was a representation that they  
would be billed something other than they were billed must have a bona fide  
foundation in fact and not be based on a “bald assertion”.  
[78] In other words, the starting point in the case at bar is an admission that the  
agreement as invoiced upon, and which the defendant then agreed to pay, was  
based on the amounts in each Purchase Order. Based on the materials before the  
court, and that admission, I cannot find that there is a bona fide foundation in fact to  
find that, the defendant did not agree to pay the amounts set out in the Purchase  
[79] However, that does not necessarily dispose of the allegations that there was  
a misrepresentation as to what the amounts in the Purchase Orders represented, or,  
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as framed by the defendant, that of every dollar they paid, 85 cents was being paid  
to the third party hosts to ensure that the advertising ultimately done on their  
platforms would be of value commensurate with the amounts the defendant was  
paying the plaintiff, such that they suffered damages or loss in paying the amounts  
as set out in the purchase orders. That is the basis of the counterclaim.  
[80] On the facts before the court, including the admissions, I am satisfied that it is  
appropriate to grant summary judgment on the claim for the amounts set out in the  
Purchase Orders and invoiced.  
[81] However, I am not satisfied that the defendant is bound to lose, or that there  
is no genuine issue of material fact requiring a trial for determination, as to whether  
or not the plaintiff represented to the defendant, and the defendant relied upon such  
representation, that 85% of the amounts paid by it would then be paid over to third  
party hosts, resulting in a certain value of advertising being placed, the failure of  
which has resulted in damages or loss as claimed in the counterclaim.  
Summary of Orders Made  
[82] I grant the relief sought by the defendant it its notice of application filed May  
24, 2022 and withdraw the deemed admissions numbered 58, 59 and 60.  
[83] As to the plaintiff’s notice of application filed April 25, 2022, I make the  
following orders:  
a) The plaintiff shall have judgment against the defendant in the amount of  
$111,877.15, plus pre-judgment interest of $706.34;  
b) Enforcement of this judgment shall be stayed until December 31, 2022, or  
such other date as the trial judge, or this court, may order.  
[84] I am staying enforcement of the judgment to enable the counterclaim to be  
prosecuted which, if the matter cannot otherwise be resolved by agreement, I would  
expect will be resolved at the November trial date. The trial judge may extend the  
stay at that time if deemed appropriate.  
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[85] As to costs, I had intended to issue these reasons orally on June 28, 2022 at  
9:00 a.m. at which time costs could be addressed.  
[86] As I have now issued my reasons in this format, I will ask the parties to  
discuss amongst themselves if they still wish to make submissions on costs on June  
28, 2022.  
[87] If not, they may advise scheduling that that date can be released, and shall  
then include in the Order that, given the divided success, each party shall bear their  
own costs on these two applications.  
Master Robertson”  

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