Sibble v. Google LLC, 2025 BCSC 537
In a certification hearing, what evidentiary value can be placed on pleadings, decisions and documents emanating from litigation or regulatory proceedings in the United States? Courts in British Columbia have wrestled with this question in recent years, as plaintiff's counsel have attempted to leverage litigation or regulatory documents from foreign jurisdictions to meet their evidentiary burden at certification.
The battle over the admissibility of foreign regulatory or litigation documents has a new dimension: what happens when plaintiff's counsel issues a notice to admit, before certification, seeking the admission of the truth of certain documents and facts emanating from US proceedings? This issue was recently addressed in Sibble v Google LLC, 2025 BCSC 537.
InSibble, shortly after the defendants delivered their certification materials, the plaintiff served notices to admit on the defendants. The notices to admit focused on facts and documents emanating from US proceedings against the defendants. In addition to seeking admissions about those proceedings, the plaintiff also sought admissions about the authenticity of documents from those proceedings.
The defendants objected to the notices to admit on several grounds. They argued that such notices are a discovery mechanism and, therefore, are not appropriate before certification. Additionally, they argued that there was no provision in the case plan order for the delivery or response to such notices, and that the plaintiff should be required to seek leave before serving a notice to admit before certification. In the alternative, the defendants denied each of the admissions, and also provided reasons explaining why the request was improper.
The plaintiff argued that the defendants' denials were non-responsive and that they should be struck, resulting in the deemed admission of the facts and documents contained in the notices to admit.
The court held that the defendants had clearly and unequivocally denied the admissions sought (whether facts or documents), and that nothing more is required under Rule 7-7(2)(a). Respondents to a notice to admit need only to provide details or reasons when they claim that they cannot make the admission sought (under Rule 7-7(2(b)) or if they take the position that the admission sought is improper (under Rule 7-7(2)(c)). Here, the defendants had issued unequivocal denials, and then offered additional reasons in the alternative for the impropriety of the requests. In such circumstances, the court need not scrutinize the reasons: denials alone are sufficient.
However, in upholding the defendants' denials, the court also concluded that notices to admit may be served pre-certification and are not inconsistent with the Class Proceedings Act. In reaching this conclusion, the court rejected the argument that such notices are discovery tools, instead characterizing them as tools of "proof" that may promote efficiency at any point in a proceeding—including a certification hearing.
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