Be careful what you admit: Ontario Court of Appeal rules on Requests to Admit

When used properly, a Request to Admit is a powerful strategic tool for litigants. Rule 51.02(1) of the Rules of Civil Procedure provides that a party may at any time request that another party admit the truth of a fact or the authenticity of a document for the purposes of the proceeding by serving a Request to Admit. The recipient of the Request to Admit can admit, deny, or refuse to admit, with reasons for the refusal, the truth or authenticity of all or some of the facts or documents. The benefits of Requests to Admit are twofold: (i) parties can gain important admissions on material facts; and (ii) admissions narrow the issues, saving the parties time and costs over trying to prove non-contested facts at trial.

In its recent decision in Champoux v. Jefremova, 2021 ONCA 92,[1] the Court of Appeal for Ontario held that clarifying facts, as stated in a Request to Admit, can be treated as an admission, even if the clarification is proffered in the context of a refusal. The Court also affirmed the practice of litigants basing their trial strategy on responses to Requests to Admit. In doing so, the Court reinforced the importance of exercising caution in responding to Requests to Admit in order to avoid unintended results.

Background

Champoux v. Jefremova is an appeal from a 2019 decision in a medical malpractice lawsuit. In 2012, the plaintiff attended an emergency room for an abscess and hyperglycemia. The defendant, Dr. Jefremova, sent the plaintiff home without treatment, determining that the abscess was not ready to incise and drain and that the plaintiff’s glucose levels were within normal range. The plaintiff subsequently experienced complications and suffered medical and social repercussions for several months. The plaintiff sued Dr. Jefremova for negligence, claiming that she breached the standard of care with respect to diagnosis and treatment.

The exact location of the abscess was a central issue at trial, as the location determined the applicable standard of care. Prior to trial, the plaintiff served a Request to Admit that the abscess was located in the perianal area. The defendant refused to admit that fact, although in her response she clarified that the abscess was a “buttock abscess/swollen nodule in the general perianal area.” The plaintiff interpreted this clarification as an admission that the abscess was a perianal abscess. The defendant brought a motion seeking to clarify or withdraw the admission.

The trial judge left the decision on the motion to withdraw until the end of trial. However, the trial judge held that the evidence revealed that the plaintiff had an abscess on the buttocks area rather than the perianal area, meaning the defendant did not breach the standard of care and was not negligent.

Court of Appeal Decision

On appeal, the Court of Appeal held that the clarification the defendant provided in her response to the Request to Admit was an admission. The Court rejected the defendant’s argument that the clarification was not an admission simply because it was proffered in the context of a refusal. The Court reasoned that to treat alternative facts offered in response as non-binding would undermine the goals of clarifying the issues and saving time and costs in the context of a Request to Admit.

Accordingly, the Court held that the trial judge erred in his treatment of the response to the Request to Admit. The Court reaffirmed that admissions are conclusive of the matters admitted. Courts are bound to accept those admissions as fact, even in the face of contradictory evidence, with the court’s discretion limited to interpreting the meaning of admissions.[2]

The Court also held that the trial judge erred in his application of the test for withdrawing admissions. As established in Antipas v. Coroneos (1988), 26 CPC (2d) 63 (Ont HC),[3] in assessing whether it may permit a party to withdraw an admission, the court first determines whether the admission is one of fact, law, or mixed fact and law. The court then applies a three-part conjunctive test to determine whether the admission can be withdrawn: (1) does the proposed amendment raise a triable issue with respect to the truth of the admission; (2) is there a reasonable explanation for the withdrawal; and (3) has the party wishing to withdraw the admission established that the withdrawal will not result in non-compensable prejudice? The Court in Champoux held that by effectively allowing the withdrawal on the basis that the admission was inaccurate, the trial judge failed to consider the non-compensable harm that the plaintiff may suffer from basing his/her trial strategy on the admission, thus ignoring the third prong of the test.[4]

Significance

This decision confirms the importance of not only carefully responding to Requests to Admit, but of properly preparing Requests to Admit.  Parties must understand that any and all aspects of their response can be treated as an admission. Admissions are binding, even in the face of contradictory evidence. Therefore, parties cannot take a laissez-faire approach to their responses, nor should they include information that they do not intend to admit.  The corollary is that parties may base their trial strategy on responses to Requests to Admit. They may serve requests that will allow them to narrow issues for trial. And where they have done so, parties may suffer non-compensable harm if those admissions are subsequently withdrawn. The Court will not allow parties to withdraw their admissions under these circumstances. 

The big takeaway here is this: know your case at the earliest stage possible.


[1] Champoux v Jefremova, 2021 ONCA 92.

[2] Champoux v Jefremova, 2021 ONCA 92 at para 34.

[3] Antipas v Coroneos (1988), 26 CPC (2d) 63 (Ont HC).

[4] Champoux v Jefremova, 2021 ONCA 92 at para 35.

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Marina Sampson

About Marina Sampson

Marina is a commercial litigator and a partner in the firm’s Litigation and Alternative Dispute Resolution practice group. Marina is an experienced class action lawyer. She is also a member of the firm’s Environmental, Renewable Energy and Energy Law Practice Group. She is the National Co-Lead of the firm’s Products Liability Group.

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Meredith Bacal

About Meredith Bacal

Meredith Bacal is a senior associate in the Firm’s Intellectual Property, and Litigation and Dispute Resolution groups. In her litigation practice, Meredith represents a diverse client base on matters related to media, entertainment, technology and defamation.

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Kristin AuCoin

About Kristin AuCoin

Kristin AuCoin (She/Her/Hers) is an associate in the Litigation and Dispute Resolution group at Dentons. Based in Toronto, Kristin maintains a general litigation practice.