ICBC Denied Liability Withdrawal Following Examination for Discovery
Reasons for judgement were recently shared with me by my colleague in Nanaimo addressing ICBC’s attempt to withdraw a formal admission of liability following examinations for discovery.
In the recent case (Smith v. Smith) the Plaintiff was injured while riding as a passenger in a vehicle involved in a 2008 roll-over collision. ICBC initially took the position that the driver of this vehicle was negligent and responsible for the crash. In the course of the lawsuit ICBC continued with this position and formally admitted liability.
Both the Plaintiff and Defendant were examined for discovery. During these examinations evidence was adduced which made ICBC’s lawyer wish to raise the ‘inevitable accident‘ defence. ICBC sought to withdraw their admission of liability arguing that ‘new information’ came to light through the discovery process. Mr. Justice Greyell disagreed finding that the ‘new information’ was nothing more than the Defendant’s account of the collision and was available to ICBC all along. In dismissing ICBC’s request for amended pleadings the Court provided the following reasons:
 The evidence which was elicited at the examinations for discovery of the plaintiff and the defendant on February 21, 2012 was clearly available to ICBC had the adjuster chosen to request it. There are, to use the words of Rholing at para. 18, no new facts which have come to the attention of the defendants which were not available when the admission was made.
 What appears to have happened in this case is similar to what occurred in Boyd: counsel took a different view of the facts than did the adjuster when the matter was considered shortly after the accident.
 Third, the plaintiff, in my view, would clearly be prejudiced should the Court allow the defendant to withdraw the admission at this late stage of these proceedings…
 Accordingly, the interests of justice are not, in my view, served by permitting the defendant to withdraw his admission.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.