Tag: Admissions

Can a Liability Admission Reached by Agreement Be Judicially Set Aside?

The BC Court of Appeal had an opportunity to address this issue and the short answer is yes.
In this week’s case (Goundar v. Nguyen) the Plaintiff was injured in a multi-vehicle collision. The Plaintiff sued two motorists and ICBC initially denied fault on behalf of both.  As the lawsuit progressed the Defendant’s lawyer ‘inadvertently’ agreed to admit liability on behalf of one Defendant in exchange for a discontinuance against the second Defendant.  This deal was agreed to  and an amended Response was filed.  Subsequently a Court order was obtained setting aside the admission of liability accepting that it was agreed to inadvertently by defence counsel.
The Plaintiff appealed arguing the liability agreement superseded the Court’s jurisdiction to set aside the admission.  The BC Court of Appeal disagreed and held that the Court retained the discretion to set the admission aside.  In reaching this conclusion the Court provided the following reasons:
[26]         I have already concluded that Rule 7-7(5) applies to withdrawing an admission even if it arose from an agreement, and determined that the agreement in issue in this case does not purport to attempt to oust the application of the Supreme Court Civil Rules and, in particular, the rule governing the withdrawal of an admission made in a pleading.  The fact of the agreement and the conduct of the parties relying on it is a factor that can, to the extent necessary, be taken into account in the balancing of prejudice as part of answering the ultimate question whether the interests of justice require permitting the admission to be withdrawn.
[27]         In the result, I am satisfied that the chambers judge adopted the correct test in deciding the issue before her.
[28]         Allowing the withdrawal of an admission is a discretionary matter.  Deference is owed to the chambers judge, unless the judge erred in principle in the exercise of her discretion.  Here I see no such error.  The judge found there to be a triable issue.  She concluded that the admission had been made inadvertently.  She balanced any prejudice arising from the proposed withdrawal of the admission.  She addressed the extent to which a prejudice could be compensated by costs.  I would not interfere with the exercise of the chambers judge’s discretion.

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:
[28]  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.
[29]  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.
[30]  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…
[31]  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.

More On Withdrawing Admissions of Liability


As previously discussed, Rule 7-7(5) canvasses the BC Supreme Court’s authority to allow a party to a lawsuit to withdraw a formal admission made the course of litigation.
A common admission canvassed under this rule deals with fault following a crash.  Occasionally ICBC admits fault on behalf of a Defendant and for various reasons wishes to withdraw such an admission as the lawsuit progresses.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Goundar v. Nguyen) the Plaintiff was involved in a 2008 collision.  ICBC initially denied fault on behalf of the Defendant.  In the course of the lawsuit the Defendant’s lawyer ‘inadvertantly’ agreed to admit liability on behalf of the Defendant and an amended Response was filed.
The Defendant brought an application to withdraw its admission.  In allowing this the Court found that the admission was made inadvertently and provided the following reasons:

[35] Rule 7-7(5) provides:

A party is not entitled to withdraw…

(c) an admission made in a pleading…

except by consent or with leave of the court.

[36] The cases to which I was referred dealing with withdrawal of admissions treat admissions made by inadvertence with caution.  Many of the cases deal with deemed admissions through failure to respond to a Notice to Admit.  However, the considerations remain the same.  The court will consider if the admission was made inadvertently, if it is in the interests of justice to allow the issue to be resolved by a trial, and if there will be no prejudice to the party which cannot be compensated by costs.  If satisfied of those factors, leave to withdraw such an admission will generally be granted. (Abacus Cities Ltd. v. Port Moody [1980] B.C.J. No. 1749 and cases cited therein).

[37] The balancing of the interests of justice requires the applicant to show that there is a triable issue in respect of the admission.  The chambers judge must not make a final determination, but will simply determine if there is an issue worthy of being tried.  Prejudice resulting only from the benefit of relying on the admission occasioned by the inadvertence is not of significance (Can-Am, supra)…

[42] I am satisfied there is a triable issue on liability, based on the information put before me as to Goundar’s allegations, potential evidence from Maharajh, and Nguyen’s ticket on the one hand, and Nguyen’s and Stewart’s evidence on the other.  As well, Nguyen has her own action which is still outstanding.  There is a conflict in the evidence about the collision, which should be resolved by a trial.

[43] Although the plaintiff says the relevant admission was made deliberately and with no new facts available, that is not borne out by the affidavit material.  The lawyer has set out clearly how she came to make this admission in the face of her own assessment of the case and contrary instructions.  She admits she did not remember her instructions had changed and she did not conduct a review of the file before following a prompt from her paralegal to follow up on ICBC’s original letter.  The initial suggestion by ICBC to canvass plaintiff’s counsel regarding the proposal was made without the benefit of Mr. Stewart’s evidence, and the relevant instructions not to admit liability were in place at the time the lawyer amended the Response to admit liability.  I am satisfied that the defendant has demonstrated that the admission was made inadvertently.

[44] As for the balancing of prejudice, nothing irrevocable has been done that cannot be compensated for in costs.  The interests of justice require that this unfortunate situation be set back on track rather than allow the Goundar action to proceed on an untested and possibly erroneous foundation which has come about as a result of a mistake.

[45] If the admission of liability is left in place, the possibility of future remedies exists through an action by ICBC against the lawyer, and also possibly by Nguyen against ICBC for failure to defend her in this action.  However, that is not a satisfactory approach.  Goundar’s action would still be predicated upon a mistaken admission, and the interests of justice are not served by failing to rectify a mistake in circumstances where any prejudice can be compensated for in costs.

[46] The delay in bringing the application, once the lawyer became aware of her mistake, is not inordinate.  The trial date is four months away, which allows time for additional discovery.  While the deadline for expert reports is approaching, any prejudice arising from that factor can be compensated for in costs, as set out below.

[47] Goundar says this case is taken outside the usual bounds of withdrawals of admissions by the bargain she struck – discontinuing the action against Stewart in exchange for an admission of liability on behalf of Nguyen.  The defendants must be held to their bargain.  However, the Court of Appeal held in Drake (Guardian ad litem of) v. Clark (1996) 31 B.C.L.R. (3d) 289 that it is no longer necessary for the doctrine of promissory estoppel to be invoked in applications to withdraw admissions.  Withdrawal may be made if it is in the interest of justice.  As well, in this case, unlike Phil Whittaker Logging Ltd., supra, and the other cases referred to by the plaintiff, the admission was made inadvertently.

Can ICBC Deny Fault For a Crash After Previously Admitting it?


As with most areas of law, the short answer is ‘it depends‘.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, canvassing this area of law.
In today’s case (Hurn v. McLellan) the Plaintiff was injured in a 2007 motor vehicle collision.  It was a ‘t-bone‘ crash that occurred in a parking lot.  The Plaintiff started a lawsuit and ICBC admitted the issue of fault in the Pleadings on behalf of the other motorist.  As the lawsuit neared trial ICBC brought an application seeking permission to withdraw the admission of fault.  Master Bouck dismissed ICBC’s request finding it would be prejudicial to the Plaintiff’s interests.  In doing so the Court provided the following useful summary of the law:

[26] …There are similar and overlapping considerations for the court on these two types of applications. However, to adopt the submissions of plaintiff’s counsel, the “high bar” threshold to obtain leave to withdraw an admission must be met before the “low bar” threshold to obtain leave to amend a pleading will follow. Thus, the legal test to be met by the defence is with respect to the withdrawal of an admission.

[27] Rule 7-7(5) of the SCCR  provides that:

7-7(5)  A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.

[28] The principles which govern an application to withdraw an admission of fact are as follows:

1.  Whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact;

2.  In applying that test, all of the circumstances should be taken into account including whether:

(a) the admission has been made inadvertently, hastily or without knowledge;

(b) the fact admitted was not within the knowledge of the party making the admission

(c) the fact admitted is not true.

(d) the fact admitted is one of mixed fact and law

(e) the withdrawal of the admission would not prejudice a party

(f) there has been no delay in applying to withdraw the admission.

Hamilton v. Ahmed (1999), 28 C.P.C. (4th) 139 (B.C.S.C.) at para. 11, as approved in Munster & Sons Developments Ltd. v. Shaw, 2005 BCCA 564.

[29] More recently, the test has been articulated by the court in 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582 at para. 27:

As a general rule, the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following facts, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of an admission and estoppel …

[30] The question of fault for the accident is one of mixed fact and law: Bedwell v. McGill, 2008 BCCA 6 at paras. 33 to 34, foll’g Housen v. Nikolaisen, [2002] S.C.J. No. 31, [2002] 2 S.C.R. 235 at para. 27 (S.C.C.), per Iacobucci and Major JJ.

[31] However, whether the admission sought to be withdrawn is one of fact, law or mixed law and fact, the same legal test applies: Nesbitt v. Miramar Mining Corp., 2000 BCSC 187 at para. 6.

[32] It is not enough to show that triable issue exists. The applicant must show that, in all of the circumstances, the interests of justice require the withdrawal of the admission: Rafter v. Paterson(November 7, 2007), Vancouver No. B924884.

[33] Moreover, even if a trial date is not imminent and the applicant gave early notice of the proposed withdrawal of the admission, delay in bringing an application for such relief might in itself be a “concern that cannot be overcome”: Sureus v. Leroux, 2010 BCSC 1344.

BC Supreme Court Rules Update: Withdrawing an Admission of Fault

Reasons for judgement were released today considering when a Defendant can withdraw an admission of fault in a personal injury lawsuit.
In today’s case (Surerus v Leroux) the Plaintiff was injured when he was struck by a vehicle operated by the Defendant.  He sued for damages and alleged the crash was the Defendant’s fault for a variety of reasons including that the Defendant drove a vehicle with defective brakes.  ICBC, the insurer for the Defendant, instructed the defence lawyer to admit fault.
In the course of the lawsuit the Defendant wished to withdraw the admission of fault.  The Defendant brought a motion asking the Court’s permission to do so.  Master Shaw dismissed the motion finding that the request was brought too late in the course of lawsuit.
The Court applied Rule 7-7(5) of the New BC Supreme Court Civil Rules (the rule dealing with withdrawing admissions).  This is the first case I’m aware of applying this rule however it’s worth noting that the rule’s language is almost identical to the old rule 31(5)(c) and the Court relies on precedents established under the old rule as being authoritative.  In dismissing the motion Master Shaw made the following comments:

[3]             Rule 7-7(5) reads as follows:

Withdrawal of admission

(5)  A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.  …

[17]         This is not a case where the plaintiff’s pleadings set out a variety of allegations of possible negligence. The plaintiff made a specific allegation in his pleadings of poor mechanical condition and faulty brakes.

[18]         The defence says that there is an issue to be tried, and states that the defendant’s evidence will be that he had no prior knowledge of the brake issue before the accident.

[19]         In 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582, Madam Justice Martinson states at para. 27:

27        As a general rule the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following factors, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of the admission and estoppel. See Meisenholder v. Wikdahl, 2005 BCSC 630 and Hamilton v. Ahmed. A deemed admission can be withdrawn even where the failure to reply was deliberate: Linear S.R.L. c. CCC – Canadian Communications Consortium Inc. 2001 BCSC 682.

[20]         I am satisfied that the interests of justice do not justify the withdrawal of the deemed admission.

[21]         I have reviewed the factors set out by Madam Justice Martinson in 374787 B.C. Ltd. and affirmed by the Court of Appeal. This claim was filed October 6, 2008. It is almost four years since the date of the accident. There is a trial date scheduled for April 11, 2011. Discoveries have been conducted. The notice of motion was not filed until May 28, 2010, although the defence notified the plaintiff in September of 2009 that they were attempting to withdraw their admission of liability. I find that the delay of the defendant bringing this application, from the time of the accident to now, is a concern which cannot be overcome.

[22]         The trial date scheduled for April 11, 2011, is not imminent and, therefore, not necessarily at risk for losing the date.

[23]         There was no evidence put before this court with respect to the status of the vehicle. It is unknown if it is even available for inspection. The plaintiff specifically pleads in the statement of claim the condition of the brakes. That should have alerted the adjuster and defence. Even if the admission was inadvertent, there appears to be an element of simply not paying attention to the pleadings.

[24]         Withdrawing the admission at this late date would be prejudicial to the plaintiff. The plaintiff has acted to his detriment by relying on the admission.

[25]         I find that the interests of justice would not be served by allowing the withdrawal of the admission at this date.

[26]         In the result, I dismiss the application of the defendant. Costs will go to the plaintiff in any event of the cause.

The Crash Was My Fault, on Second Thought…


After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

Just Because You Have It Doesn't Mean You Should Use It – Trials and Discovery Evidence


As I’ve previously discussed, one of the main purposes of an examination for discovery is to ‘discover‘ evidence that can help your case or hurt your opponents.
After a discovery a lawyer can read relevant portions of the transcript in at trial and the evidence can have the same weight as if it was given live in Court.   However, just because you have evidence obtained from a discovery does not mean it should be used.
If you read evidence in that advances your opponents case (or that contradicts yours) the Court can rely on this to dismiss your lawsuit.  Reasons for judgement were released today by the BC Court of Appeal discussing this principle and some of its limits.
In today’s case (Duncan v. Mazurek) the Plaintiff, a pedestrian who was jay-walking, was struck by the Defendant’s vehicle.  At trial both the Plaintiff and the Defendant were found at fault.  The Defendant successfully appealed and a new trial was ordered.  Before reaching this verdict the BC High Court had the opportunity to discuss the weight of discovery evidence at trial.
During the trial the Plaintiff read in portions of the Defendant’s examination for discovery.  Some of the evidence apparently contradicted the evidence supportive of the Plaintiff’s case.  The Defendant argued that doing this  amounted to the Plaintiff adopting the Defendants evidence and leaving the trial judge with no choice but to accept it.  The BC Court of Appeal disagreed however provided the following caution about reading in unhelpful evidence from a discovery transcript:
[30] The defendant, relying on Chetwynd-Palmer v. Spinnakers, [1993] B.C.J. No. 95 (S.C.) and Tsatsos v. Johnson (1970), 74 W.W.R. 315, says that by reading in that discovery the plaintiff adopted and approbated his evidence, and the trial judge is not entitled to reject it and choose a different version more favourable to the plaintiff. I am not convinced those cases go that far. While the plaintiff may be at some risk in reading in such evidence as part of her case, where there is contradictory evidence it is my view that the trial judge must retain discretion to weigh it all in reaching his findings
Before you read in discovery evidence ask yourself if the evidence helps your case or hurts your opponents.  If the answer is no to both questions you should think twice before letting the evidence go before the Court.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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