“Although Jessica abandoned the argument that the higher income in the unanswered Request to Admit should prevail, it is instructive to site the law on point. In Children’s Aid Society of Algoma v F.M., 2021 ONCJ 184 at paragraphs 26-27 the court held:
The Request to Admit is only a litigation device that opens the evidentiary gate to allow entry to the fact that is either admitted or not denied. This is only entry to the pool of potentially admissible evidence however, the fact still has to pass other evidentiary tests to have evidentiary value. It must be relevant. It must be factual. It must be reliable. In this case, there is also the determination of against whom the fact is to be waived. However, those are matters for the trial judge to deal within his or her ultimate decision. From the standpoint of the ruling on admissibility, it is a very easy matter. Any fact on which any denial or refusal to admit is made, regardless of who made it, does not meet the requirement that leads to a deemed admission of the truth of the fact for any evidentiary purpose. The fact will have to be proven to be true by the party seeking its admission into evidence in some other manner, not by way of Request to Admit. [Emphasis added in the original]
Likewise, in Jama v. Basdeo, 2020 ONSC 2922, where the respondent also failed to respond to the Request to Admit, the court concluded:
Whenever Ms. Jamas’ own evidence (which is not restricted to her testimony, but includes any evidence adduced by her counsel during trial) contradicts facts set out in Request to Admit, I have not deemed those facts to be admitted by Mr. Basdeo. In those instances, I have made factual determinations based on the totality of the relevant evidence.
The underlying principle in both these cases is well established beyond the context of the operation of this subrule; any finding of fact must be made on the totality of the evidence before the court at trial, including undefended trials.”