CITATION: Thermo v. Pareja et al, 2026 ONSC 508

COURT FILE NO.: CV-20-214-00

DATE: 2026-01-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THERMO COUSTICS LIMITED

T. Davis, for the Plaintiff/Respondent

Plaintiff/Respondent

• and -

WALTER PAREJA and RESILIENCE LIFESTYLE INC.

O. Hoque, for the Defendants/Applicants

Defendants/Applicants

HEARD: December 12, 2025, via Zoom

Justice W.D. Newton R.S.J.

Decision On Motion

Overview

1The defendants move to withdraw admissions deemed as a result of failure to respond to a request to admit.

2For the reasons that follow, the motion is dismissed.

Procedural History to Date

3The trial of this action under the Construction Act¹ was set to begin on Monday May 26, 2025. On Friday May 23, counsel for Thermo served a motion for judgment based on the failure of the defendants to file a response to requests to admit dated August 14, 2024, and May 2, 2025. As there was some dispute as to whether the May 2, 2025 request to admit had been responded to, the plaintiff sought judgment based on the failure to respond to the August 14, 2024 request to admit only.

4This motion proceeded before Justice Ellies who decided to allow the defendant to bring a motion to withdraw the deemed admissions. Justice Ellies noted:

[15] The August request to admit was very detailed. In it, the defendants were asked to admit what Mr. Davis submits are all of the facts necessary for his client to succeed at establishing the amount alleged to be owing and the validity of the lien claim against both defendants. Clearly, it would have been contrary to the defendants’ legal interests not to respond to the request to admit. And yet, no response to the request was ever received.

[16] Instead, first one trial date, and then another, was set. Notwithstanding the fact that the defendants were deemed under r. 51.03 to have admitted the truth of the facts and the authenticity of the documents referred to in the August 14 request to admit before the date the first trial was set to begin in September 2024, no motion under r. 51.06 was served until the day before the second trial began, when it was served directly on the defendants.

[17] In these circumstances, I believe it would be unfair not to provide the defendants with an opportunity to move, with a proper motion record under r. 51.05, to withdraw their deemed admissions. The plaintiff will not suffer any prejudice that cannot be remedied in costs. Its ability to collect on any judgment issued in its favour, including a judgment for costs, has been preserved by the lien that remains registered against the subject property.²

5Justice Ellies set a timetable for the hearing of the motion and stated:

[23] I want the defendants to understand very clearly that it will likely be necessary for their former lawyer, Mr. Haque, to give affidavit evidence in support of their request to withdraw their deemed admissions.

This Motion

6In support of the motion, the defendants filed an affidavit from Walter Pareja, the defendant, and Paola Pareja, sole director and owner of the defendant Resilience.

7With respect to the August 2024 request to admit, Ms. Pareja deposed that his former lawyer, Taheratul Haque, received the request to admit by email and then stated:

I am advised by Mr. Haque and do verity believe that he inadvertently failed to notice the August RTA in his email inbox and failed it to my or Mr. Pareja’s attention.

8Ms. Pareja then set out that he denied each fact set out in the August 2024 request to admit.

9Ms. Pareja deposed that Mr. Haque received a second and different request to admit dated September 4, 2024 which Mr. Haque responded to in time with a simple denial.

10Mr Pareja further deposed that Mr. Haque received a third and different request to admit dated May 2, 2025, which Mr. Haque responded to in time with a simple denial.

11Walter Pareja repeated the same assertions of Paola Pareja – that he was advised by Mr. Haque that he “inadvertently failed to notice the Augst RTA in his email inbox and failed to bring it to my attention” and that “at no time prior to May 26, 2025, did the Plaintiff or its Counsel bring [sic] the August RTA to my attention”.

12An affidavit filed by the plaintiff confirms that a letter was sent to Mr. Haque on February 12, 2025, confirming that facts were deemed admitted because of the August 2024 request to admit.

The Law

13In 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).³

14The 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.⁴

Position of the Parties

15The sole issue to be determined is whether there is a reasonable explanation to allow withdrawal of the deemed admission. Is it sufficient for a party to say that his lawyer told him that the failure arose through inadvertence?

16Counsel for Thermo says no and relies upon Seal Tech Basement Sealing Inc v. Prychiko.⁵ In Seal Tech, Justice Valin dealt with a similar case, in which part of the plaintiff’s motion sought to withdraw a deemed admission based on alleged inadvertence. He noted:

[28] The issue on this motion is whether the deemed admissions were inadvertent. The test for leave to withdraw and admission is not simply to have the party in default, or its lawyer, say the default occurred because of inadvertence. If that is all that is required, then the time limits mean nothing. There must be some explanation as to what went procedurally awry in the solicitor’s office that resulted in the failure to respond: Falco v. P.V. & V. Insurance Centre, [2007] I.L.R. I-4639 (S.C.), at para. 19.

[29] In this case, Mr. Morin’s assertion of inadvertence is insufficient. Mr. McLean was counsel for the plaintiff until July 22, 2014. Mr. McLean certainly has information as to what discussions he had with Mr. Morin after being served with the request to admit and forwarding it to his client. There is no affidavit from Mr. McLean in the motion material.

[30] In the absence of any explanation from Mr. McLean, I am not inclined to grant leave to the plaintiff to withdraw the admissions it is deemed to have made by virtue of its failure to respond to the request to admit.

17Counsel for the defendants says yes, being told by your former lawyer that he missed the email with the request to admit is enough.

Analysis and Disposition

18The August 2024 request to admit deals with pure fact and is substantially different than the other two requests to admit that involve questions of mixed fact and law and law.

19As noted, Justice Ellies advised the defendants “that it will likely be necessary for their former lawyer, Mr. Haque, to give affidavit evidence in support of their request to withdraw their deemed admissions.”

20They did not heed that advice and did not offer any explanation as to why there was no direct evidence from Mr. Haque. Instead, both deponents asserted that they were told that the lawyer missed the August 2024 request to admit in his email.

21I note that Justice Valin would have concluded that this was insufficient.

22There is an additional fact in this case that strengthens Thermo’s position on the “no reasonable explanation” factor. The February 12, 2025 letter from Thermo’s counsel to Mr. Haque contains a settlement proposal and references the August 2024 request to admit as follows:

After speaking to my client and in light of the various facts that both Defendants are deemed to have admitted under a request to admit served Augst 14, 2024, including but not limited to the admissions that:

[Emphasis added.]

23There is no explanation for the failure to respond to this letter which refers to the deemed admissions.

24As such, the defendants have not provided a reasonable explanation which would justify the withdrawal of the deemed admissions.

25The defendants’ motion is dismissed

Costs

26Thermo is entitled to its costs of this motion and, if costs are not settled, Thermo may deliver cost submissions limited to three pages plus costs outline within 20 days. The defendants may deliver reply submissions within 10 days thereafter, subject to the same limitation.

The Hon. Justice D. Newton R.S.J.

Footnotes

1. 1R.S.O. 1990, c. C. 30.
2. 2Thermo Coustics Limited v. Pareja, 2025 ONSC 3151, at paras. 15-17 and 23.
3. 3Amirthalingam v. Ratnam, 2025 ONCA 414, at para. 9.
4. 4Amirthalingam, at para. 9.
5. 52014 ONSC 6038, at paras. 28-30.