Deemed admissions are one of the more powerful (and automatic) remedies that the Rules of Civil Procedure impose for noncompliance. This article explores the ins and outs of deemed admissions, including how to undo them.
1. What is a Deemed Admission?
Pursuant to Rule 51 of the Rules of Civil Procedure, a “deemed admission” is the consequence of a failure to respond to a request to admit (“RTA”) or an improper response to an RTA (“Response”). The defaulting party is “deemed” to admit to the truth of the facts or the authenticity of the documents subject to the RTA at issue.
More specifically, an admission requested within an RTA is automatically deemed to have been made by the party receiving it if it does not respond within the time prescribed (20 days) under Rule 51.03(2). A deemed admission can also arise if a judge at trial finds that the party’s Response was not in compliance with Rule 51.03(3). To be compliant (and avoid this risk), a Response must state whether the party: (1) specifically admits in part or full; (2) specifically denies in part or full; or (3) specifically refuses in part or full, with sufficient reasons, the matters requested within the RTA.
A sufficient reason for refusal in a Response must explain why the fact at issue remains contested for trial or why it would be improper to admit or deny the truth of the facts subject to the RTA. For example, a party may appropriately respond that it has no personal knowledge of the facts for which an admission is sought.
(i) A deemed admission is a subset of formal admissions.
A deemed admission is a “formal admission”, one of the two types of admissions that can arise or be made in a proceeding:
(1) A “formal admission” (also known as a “judicial admission”) is the admission of a fact (and sometimes law) that binds the party making it, whether expressly or through the operation of other rules, including admissions made or deemed to have been made in connection with an RTA. These admitted facts need not be proven by the opposing party at trial.
(2) An “informal admission” is an admission of fact or law made by a party during the adversarial processes, such as during examinations. These must be proven by the opposing party at trial.
As a formal admission, an admission that results from an RTA places the subject facts out of dispute conclusively for the remainder of the litigation process. Importantly, however, neither an expressly admitted fact nor a deemed admission is necessarily admissible at trial: Objections to the admissibility of formal admissions are within the sole jurisdiction of the trial judge to be heard and ruled upon pre-trial or at trial, as recently confirmed in Vaughan v Chen, 2026 ONSC 4135, at para 16.
(ii) A deemed admission is not the only type of formal admission that can be made through the RTA Process.
Formal admissions can be made through the RTA process beyond express or deemed admissions. In the leading case of Champoux v Jefremova, 2021 ONCA 92, the Court of Appeal held that a party’s reasons for refusing an RTA must also be treated as a formal admission. The court elucidated its reasons at para 26:
The purpose of request to admit procedures — to save time and costs by narrowing the facts in issue — would be undercut if litigants could deny [or refuse] a fact in a Request to Admit on the basis that an alternative set of facts is accurate, but then treat those proffered alternative facts as non-binding. That approach would obfuscate rather than clarify what facts are in issue.
2. Can a deemed admission be “appealed” or withdrawn?
A deemed admission can be “appealed” or “withdrawn,” to use the more precise terminology, under Rule 51.05 through either the consent of the parties involved or by motion. Given that admissions made through the RTA process are not to be used as a “gotcha” to prove disputed facts, but rather to cooperate on determining which facts are uncontested such that they need not be put to trial, the party serving an RTA should generally consent to an appropriate request for more time to respond to an RTA.
If the party that served the RTA does not consent to the withdrawal of an admission made through the RTA process, the party that made the admission can move to withdraw it. In Amirthalingam v Ratnam, 2025 ONCA 414, at para. 9, the Court of Appeal recently re-affirmed that the two-part test for withdrawing a deemed admission is the same test that applies on a motion to withdraw any other formal admission made during the RTA process (the “Withdrawal Test”). First, the court must consider whether the admission is one of fact or law (as the latter can more easily be withdrawn). Second, and more importantly, the court must answer the following questions in the affirmative, such that all requirements must be met for the motion to succeed (as stated in Champoux at para 28):
(a) Does the proposed [withdrawal] raise a triable issue in respect to the truth of the admission?;
(b) Is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?; and,
(c) Has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?
(i) Caselaw on Motions to Withdraw a Deemed Admission:
(i.1.) Champoux
Champoux had a unique set of facts. At trial, the appellant successfully opposed the respondent’s motion to withdraw an admission. The appeal concerned two issues raised by the appellant:
(i) whether the trial judge’s reasons are insufficient to permit appellate review; and
(ii) whether the trial judge erred in his consideration of a Response to Request to Admit filed by counsel for [the respondent].
The appellant, Penny Lee Champoux, was challenging the dismissal of her medical malpractice suit against the respondent, Dr. Ljudmilla Jefremova, an emergency room physician who had sent her home despite her needing emergency surgery at the time. The standard of care depended on an issue of fact about where on the appellant’s body the respondent had diagnosed her to have an abscess.
The appellant’s counsel served an RTA before trial requesting an admission that: “[o]n June 29, 2012, Penny Lee Champoux had a perianal abscess.” In the Response, the respondent refused to admit or deny the request, instead asserting: “[o]n June 29, 2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area.”
The respondent’s counsel later requested consent from the appellant to withdraw this admission, explaining that the admission in the Response was made through “inadvertence” of counsel and without the respondent’s express “instructions” to counsel. The appellant declined to consent.
The respondent’s counsel then brought a motion for leave to withdraw the admission on the basis that “the admission [was] not incorrect, but [was] being misinterpreted” (sic). The trial judge dismissed the motion, finding, first, that the admission was one of pure fact and, second, that “there was no triable issue with respect to the truth of the admission” because “the interpretation of the admission [was] to be left to follow trial submissions.” Having done so, the trial judge found there was no reason to continue considering the remaining elements of the conjunctive test.
The Court of Appeal faulted this approach after finding the trial judge erred by essentially allowing the withdrawal of the admission at trial without having considered the interests of justice baked into other elements of the Withdrawal Test, stating (at para 35):
In the case at bar, the trial judge weighed the admission against the other evidence led at trial and proceeded to effectively permit the withdrawal of [that same formal] admission on the basis that [the subject fact admitted for its truth] was not accurate. He did so despite his earlier finding that there was no triable issue in respect of the truth of admission and his dismissal of the [respondent’s] motion to withdraw [that formal] admission. In so doing, he ignored the issue of non-compensable prejudice to [the appellant], who clearly based her trial strategy on the fact that she had this [formal] admission. In my view, his reasons effectively bypassed the rigorous test for the withdrawal of an admission [made in the RTA process] and resulted in an unfair trial for [the appellant]. This trial unfairness requires an order for a new trial.
Elsewhere, the court noted that the trial judge’s “interpretation” of the subject fact was that the fact itself was untrue. The court faulted this, too, as an impermissible interpretation of a formal admission, which is only admitted for its truth. The court elaborated at para 34:
A trial judge has the freedom to interpret what a[ formal] admission means…But that interpretive exercise cannot morph into an analysis of the veracity of the [truth of that formal] admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission…
(i.2.) Ratnam
In Ratnam, the Court of Appeal confirmed that the same test for withdrawing an admission made in a Response to an RTA also applies to deemed admissions arising under Rule 51.03(2) and Rule 51.03(3). Applying this test, the court found that the trial judge did not err in denying the appellants leave to withdraw deemed admissions or in issuing a corollary “order striking portions of the appellant’s trial affidavits that sought to contradict the deemed admissions.”
The court found the trial judge’s reasons for refusing leave satisfactory. Despite finding that there may be a triable issue under the second part of the Withdrawal Test, the trial judge also found insufficient evidence to satisfy the balancing requirements of the remaining elements of that part of the test. The “gaps, lack of details and inconsistencies in the appellant's evidence on the motion [record]” were “insufficient to demonstrate that their lack of response was a result of [a reasonable explanation, such as] inadvertence or wrong[ful] instructions.” As well, the appellants had not demonstrated “that there would be no prejudice to the respondent that was not compensable in costs,” considering “the age of the claim” (approximately 7 years), that this was the “second trial date,” and that “the [respondent] was prepared for trial.”
The court concluded that the trial judge's reasons showed that she “carefully considered the evidence on the motion” and that her “assessment of the evidence in relation to the sufficiency of the appellants’ explanation for failure to respond to the [RTA]” and “whether allowing withdrawal of the deemed admission would cause prejudice to the respondent” under elements (c)-(b) of the second part of the Withdrawal Test “was entitled to deference.”
(ii) Observations on Champoux and Ratnam
In Champoux it was the contradiction between the trial judge’s reasons for dismissing the motion (i.e., for not being a triable issue) and then later allowing that same issue to be tried that led the Court of Appeal to find error in the trial judge’s consideration of the Withdrawal Test. In Ratnam, on the other hand, the Court of Appeal cited the trial judge’s clarity in both considering the evidence carefully and explaining why the moving party had not satisfied the onus required of it to withdraw an admission. While the trial judge in Ratnam was not necessarily required in part two of the Withdrawal Test to consider the element (c) of the test after element (b) was not satisfied, it seems to have contributed in providing enough foundation for the appellant’s challenges of insufficient reasons and procedural fairness to be dismissed by the court.
3. Closing Thoughts
The conjunctive nature of the Withdrawal Test requires the moving party to prove all three elements (a)-(c) of the second part of the test. Since it is usually the same trial judge that must decide both on the outcome of such a motion and the trial itself, it might be more prudent to treat the Withdrawal Test as a comprehensive balancing test where (i) all requirements in part two must be met and (ii) all of the competing principles in connection with the interests of justice woven into each of the three elements are actively considered by the trial judge in his or her decision on the motion.
The three balancing interests of justice woven into the second part of the Withdrawal Test are best stated in obiter in Antipas et al v Coroneos et al, 1988 CanLII 10348 (a case concerning a test for withdrawal of admissions made in pleadings, which has been adopted in the RTA context with some adjustments over the years):
(a) the “interest of justice…right of a party to have an issue tried should not be limited except in special circumstance;”
(b) the competing “interest of expedient and responsible litigation, a party should not be permitted to blow hot and cold even if the other party can be compensated in costs or by an adjournment,” and finally,
(c) the tying together of the two interests above to show no non-compensable prejudice to the party in whose favour the admission was made to be relied upon at trial.
A comprehensive balancing test might be especially important in cases like Champoux, where both procedural unfairness at the pre-trial motions stage and unfairness at trial are at issue. Had the trial judge there considered all three of the balancing interests of justice woven into the second part of the Withdrawal Test during his motion decision (or even during his interpretative exercise in reasons post-trial), the prejudice of not allowing the appellant to rely on the formal admission at issue could have been prevented. This author believes that this comprehensive form of transparency in written reasons’ consideration of the principles that underlie judicial analyses would allow more affordable and efficient access to justice throughout the lifecycle of a case without requiring further re-litigation by any of the adversarial parties involved.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.