Court of Appeal for Ontario
Date: 2025-06-04
Docket: COA-23-CV-1350
Coram: Copeland, Monahan and Rahman JJ.A.
Between:
Pirabakaran Amirthalingam
Plaintiff (Respondent)
and
Maheswaran Ratnam and Divyabraim Shanmuganathan
Defendants (Appellants)
Appearances:
Tariq Wasey Khan, for the appellants
Karanpaul S. Randhawa, for the respondent
Heard: May 29, 2025
On appeal from the judgment of Justice M. Suranganie Kumaranayake of the Superior Court of Justice, dated October 31, 2023.
Reasons for Decision
Introduction
[1] The appellants appeal the decision of the trial judge in favour of the respondent in the amount of $160,000. The basis for the judgment was the trial judge’s finding that the respondent made loans to the appellants that were not repaid. She found in favour of the respondent based on unjust enrichment, rather than contract, because she was unable to find that there was an agreement about the term of the loans and the interest rate.
[2] After hearing submissions on behalf of the appellants, we dismissed the appeal with reasons to follow. These are our reasons.
(1) The trial judge did not err in refusing leave to withdraw the deemed admissions and in redacting the appellants’ trial affidavits
[3] The appellants argue that the trial judge denied them procedural fairness by refusing them leave to withdraw deemed admissions and in requiring that portions of their late-served trial affidavits that contradicted the deemed admissions be struck out. The appellants argue that the refusal of leave to withdraw the deemed admissions and the redacting of their trial affidavits made the trial one-sided and prevented them from putting forward their defence.
[4] We do not accept that the trial judge denied the appellants procedural fairness.
[5] The history of the proceedings provides important context for the trial judge’s ruling refusing leave to withdraw the deemed admissions. The respondent issued the claim in December 2015. The appellants filed their statement of defence in February 2016. The appellants were examined for discovery in 2016. The trial record was filed in 2019. A judicial pre-trial was scheduled for February 10, 2021, but did not proceed due to a lack of judicial resources. A judicial pre-trial was held on August 17, 2021 and an order made setting various deadlines to prepare for trial. Of relevance to the motion to withdraw the deemed admissions, the parties were ordered to exchange witness lists within 30 days. The trial was scheduled for the week of March 14, 2022.
[6] The trial could not proceed in March 2022 for several reasons: no judge was available; the appellants required a Tamil interpreter and none was available; and the judge who presided at a pre-trial when the trial did not proceed determined that the parties were not, in fact, ready for trial. The judge who conducted a pre-trial on March 16, 2022 when the trial did not proceed made an order setting deadlines for preparation for the trial. We do not reproduce all of the terms of the order. The terms directly relevant to the motion to withdraw the deemed admissions are the following: the trial was scheduled for the week of October 11, 2022, peremptory on all parties; if the parties wished to serve a request to admit, it must be served by July 30, 2022; the evidence in chief for all witnesses at trial would be by affidavit and the trial affidavits must be served and filed by September 12, 2022.
[7] The respondent served a request to admit on July 30, 2022, in compliance with the March 16, 2022 order. The appellants did not serve a response. As a result, the facts in the request to admit were deemed admitted by the appellants, pursuant to rule 51.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The respondent filed his affidavits for trial in accordance with the March 16, 2022 order. However, the appellants did not do so. They served their trial affidavits on October 6, 2022 – five days before the week scheduled for trial, leaving only one business day for their review prior to the week scheduled for trial.
[8] On the first day of trial, the appellants appeared with new counsel and requested leave to file the appellants’ late-served trial affidavits and to withdraw the deemed admissions. However, counsel had not filed a motion to do so. After directing the filing of motion materials, the trial judge heard the motion the next day. She denied leave to withdraw the deemed admissions. She allowed the appellants’ trial affidavits to be filed for witnesses on their witness list, but she directed that portions of the appellants’ trial affidavits that sought to contradict facts in the deemed admissions be struck out.
[9] In her written reasons, the trial judge set out the correct test for leave to withdraw deemed admissions, pursuant to rule 51.05. As set out in Champoux v. Jefremova, 2021 ONCA 92, at para. 28, in considering whether to allow the withdrawal of a deemed admission, a court must first consider whether the admission is one of purely fact, law, or mixed fact and law (because an admission of law may be more easily withdrawn than an admission of fact). The court must then apply a three-part test: (i) whether there is a triable issue regarding the truth of the admission; (ii) whether there is a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions; and (iii) whether the party wishing to withdraw the admission has established that the withdrawal will not result in any prejudice that cannot be compensated for in costs.
[10] The trial judge accepted that there may be triable issues regarding the content of the deemed admissions, but found that the appellants’ request to withdraw the deemed admissions failed on both the second and third branches of the test. She found that the appellants’ evidence on the motion was insufficient to demonstrate that their lack of response to the request to admit was the result of inadvertence or wrong instructions. Her reasons are clear that this conclusion was based on gaps, lack of detail, and inconsistencies in the appellants’ evidence on the motion. She further found that the appellants had not satisfied her that there would be no prejudice to the respondent that was not compensable in costs. In reaching this conclusion she noted the age of the claim, that this was a second trial date, that the respondent was prepared for trial, that the trial date was peremptory on all parties, and that requests to admit are designed as tools for efficient use of limited court resources and to reduce the cost of litigation.
[11] We see no error in the trial judge’s reasons in refusing to grant leave to the appellants to withdraw the deemed admissions. Her reasons show that she carefully considered the evidence on the motion. Her assessment of the evidence in relation to the sufficiency of the appellants’ explanation for the failure to respond to the request to admit and whether allowing withdrawal of the deemed admissions would cause prejudice to the respondent is entitled to deference. The order striking portions of the appellants' trial affidavits that sought to contradict the deemed admissions was simply a corollary of her refusal to allow the withdrawal of the deemed admissions. In other words, to give effect to the deemed admissions, the appellants were not permitted to seek to contradict them with evidence. There was no procedural unfairness to the appellants. Rather, the consequences were the result of their failure to respond to the request to admit and, relatedly, their failure to adhere to the previous orders setting deadlines for orderly preparation for trial.
[12] The appellants argue that the trial judge erred in the deemed admissions ruling by failing to consider rules 1.04(1) and 2.01(1), which favour applying procedural rules in accordance with the interests of justice and with flexibility to allow a determination of claims on the merits.
[13] We disagree. The interests of justice concerns expressed in those rules are incorporated into the test from Champoux for withdrawal of deemed admissions.
[14] The appellants also argue that the trial judge provided insufficient reasons for the ruling on the deemed admissions because she gave a bottom-line ruling on the date she heard the motion, with reasons to follow. As promised, the trial judge did provide reasons in her written judgment in the trial. There is no merit to the appellants' claim of insufficiency of reasons. Providing a bottom line ruling with written reasons delivered at a later date is not a failure to provide reasons.
(2) The trial judge did not err refusing to permit the appellants to call a witness
[15] The appellants argue that the trial judge erred in failing to consider material evidence by refusing to allow the appellants to call Kumanan Loganathan as a witness.
[16] We disagree.
[17] This ground arises out of the same procedural orders as the deemed admissions ground. Contrary to the order of August 17, 2021, Mr. Loganathan was not on the appellants’ witness list. The first notice the appellants gave the respondent of the existence of Mr. Loganathan was in serving a late-served trial affidavit on October 6, 2022. The respondent’s evidence on the motion was that he did not know who Mr. Loganathan was. The trial judge found that it would be unfair to permit the appellants to add Mr. Loganathan as a witness at the last minute in the absence of a compelling reason to do so, when they were ordered to provide their witness list in 2021.
[18] We see no error in the trial judge’s decision. We would add that in addition to the appellants’ failure to include Mr. Loganathan in their witness list in 2021, their late filing of their trial affidavits meant that the respondent heard of Mr. Loganathan for the first time on the eve of trial.
[19] The trial judge did not fail to consider material evidence. Rather, she did not admit the evidence of Mr. Loganathan at trial due to its late filing and the appellants’ failure to include Mr. Loganathan on their witness list in breach of the previous court orders designed to ensure orderly and fair preparation for trial. We see no error in the trial judge’s exercise of her trial management powers in the face of the appellants’ failure to comply with the earlier court orders setting deadlines governing preparation for trial.
(3) The trial judge did not err in her unjust enrichment analysis
[20] The appellants argue that the trial judge erred in her unjust enrichment analysis. The primary argument is that her findings were based on an unfair record because the appellants were not permitted to withdraw the deemed admissions or to lead evidence to seek to contradict them.
[21] We have already explained why we see no error in the trial judge’s decision refusing to permit the appellants to withdraw the deemed admissions or lead evidence to seek to contradict them. Further, we see no error in the trial judge’s unjust enrichment analysis based on the facts she found.
[22] At trial, the appellants did not contest the fact of the loans. Rather, they took the position that the loans were only $160,000, not the $250,000 claimed by the respondent. They also took the position that the loans had been fully repaid. The trial judge found that $160,000 in loan funds were advanced to the appellants, but that the appellants did not repay any of the funds.
[23] The trial judge correctly outlined the required elements of a claim of unjust enrichment, relying on Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. She found that the elements were satisfied. The appellants had been enriched based on her finding that the respondent advanced $160,000 in loan funds to the appellants. There was a corresponding deprivation to the respondent because the loan funds were not repaid. There was no juristic reason for the enrichment. Although the trial judge found there was no contract formed because of the lack of agreement on when the funds would be repaid and the interest rate, she found that the funds were extended as a loan and not as a gift, and had not been repaid. We see no error in her analysis.
Disposition
[24] The appeal is dismissed, with costs to the respondent in the amount of $6,000, inclusive of disbursements and applicable taxes.
“J. Copeland J.A.”
“P.J. Monahan J.A.”
“M. Rahman J.A.”