Withdrawing Deemed Admissions: Rule 7-7(5) Given First Judicial Consideration
Under both the old and the new BC Supreme Court Civil Rules parties to a lawsuit could ask the opposing side to make binding admissions through a “Notice to Admit”. If the opposing side fails to respond to the Notice in the time lines required they are deemed to have made the sought admissions. Once the admission is made it cannot be withdrawn except by consent of the parties or with the Court’s permission. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering when deemed admissions could be withdrawn under the New Rules.
In today’s case (Weiss v. Koenig) the Plaintiff was involved in a 2006 motor vehicle collision. He claimed he sustained various injuries including bilateral hearing impairment. In the course of the lawsuit ICBC asked the Plaintiff to make various admissions including an admission that his hearing was not affected as a result of the collision. The Plaintiff failed to respond to the Notice to Admit in time thus was deemed to make the admissions. The Plaintiff brought a motion to set these admissions aside and ICBC opposed.
Master Keighley granted the motion and set aside the admissions. In doing so the Court noted that the admissions were made by inadvertence and that there was little prejudice to ICBC if these admissions were set aside.
This is the first decision I’m aware of applying Rule 7-7(5) of the new Rules of Court. The Court noted that the new rule is almost identical as the old rule and implies that the precedents developed under the old Rule 31 remain good law. Master Keighley set out and applied the following test in addressing the application:
Is there a triable issue which in the interests of justice should be resolved on the merits and not disposed of by deemed admission? In applying the test, all of the circumstances should be taken into account including:
1. That the admission has been made inadvertently, hastily, or without knowledge of the facts.
2. That the fact admitted was not within the knowledge of the party making the admission.
3. That the fact admitted is not true.
4. That the fact admitted is one of mixed fact and law.
5. That the withdrawal of the admission would not prejudice a party.
6. That there has been no delay in applying to withdraw the admission.