Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.
In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision. He sued alleging the Defendants were at fault. ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit. As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“. Based on this the Defendants sought to withdraw the admission of fault. In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it. In dismissing the application Mr. Justice McEwan provided the following reasons:
 The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.
 ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.
 At this late stage both cars have been written off and are no longer available for inspection.
 It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.
 The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.
 I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.
 The application is dismissed with costs to the plaintiff.
Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court. When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury. ICBC initially looked at the liability situation and placed the Defendant at fault. After the lawsuit started liability was formally admitted in the pleadings. As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence. The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation. In dismissing the application Master Bouck provided the following reasons:
 The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
 The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
 In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
 The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
 The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
 This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman,  B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
 A similar analysis of this question is given in Oostendorp v. Sarai,  B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
 I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
 In the result, I find that the application ought to be dismissed, with costs to the plaintiff.
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.
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:
 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. …
 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.
 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.
 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.
 I am satisfied that the interests of justice do not justify the withdrawal of the deemed admission.
 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.
 The trial date scheduled for April 11, 2011, is not imminent and, therefore, not necessarily at risk for losing the date.
 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.
 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.
 I find that the interests of justice would not be served by allowing the withdrawal of the admission at this date.
 In the result, I dismiss the application of the defendant. Costs will go to the plaintiff in any event of the cause.