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Admissions [R51]

. Hilson v. Evans

In Hilson v. Evans (Div Ct, 2022) the Divisional Court considered how to handle the situation where a party issued a Request to Admit, it was not answered by the opposing party and so admissions were deemed - but then the issuing party contradicted the admissions:
[73] It is a rare occurrence for a party in a civil action to give evidence that contradicts a deemed admission flowing from her own unanswered Request to Admit, and there is little authority that addresses the effect of the contradictory evidence on the deemed admission. But this very thing occurred in Jama v. Basedeo, 2020 ONSC 2922. In that case, the applicant served a Request to Admit under r, 22(2) of the Family Law Rules O. Reg. 114/99 (“FLRs”), and the respondent did not file a Response. As a result, the trial judge ruled that certain statements set out in the Request to Admit were deemed to be admitted by the respondent, and that the respondent could not lead evidence contradicting the facts set out in the statements. However, at the trial, some of the facts that were deemed to be admitted were contradicted by evidence adduced by the applicant. As a result, the trial judge decided, at para. 21, that wherever the applicant’s own evidence, either in her testimony or otherwise adduced by her, contradicted facts in her Request to Admit, he did not deem those facts to be admitted by the respondent. In those instances, he made factual determinations based on the totality of the relevant evidence.

[74] I consider the approach taken in Jama to be sound, and consistent with the Rules. Rule 51.05 permits an admission made in response to a request to admit, a deemed admission under r. 51.03 or an admission in a pleading to be withdrawn with leave of the court. In effect, that is what the trial judge did in Jama (although operating under the FLRs, which have a similar provision at r. 22(5)), and that is what the trial judge did here.


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