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.

Admissions, bc injury law, Goundar v. Nguyen, Madam Justice Humphries, Rule 7, Rule 7-7, Rule 7-7(5)

Comments (47)

  • Hey There. I found your blog using msn. This is a really well written article. I will be sure to bookmark it and come back to read more of your useful information. Thanks for the post. I will definitely return.

  • Thanks for another great article. Where else could anyone get that kind of info in such an ideal way of writing? I’ve a presentation next week, and I am on the look for such information.

  • You have remarked very interesting points ! ps nice internet site . “To grow mature is to separate more distinctly, to connect more closely.” by Hugo Von Hofmannsthal.

  • I was wondering if you ever considered changing the page layout of your blog? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having 1 or 2 images. Maybe you could space it out better?

  • What’s Happening i am new to this, I stumbled upon this I have found It positively useful and it has aided me out loads. I hope to contribute & aid other users like its aided me. Good job.

  • I’m truly enjoying the design and layout of your blog. It’s a very easy on the eyes which makes it much more enjoyable for me to come here and visit more often. Did you hire out a developer to create your theme? Exceptional work!

  • I have been absent for some time, but now I remember why I used to love this blog. Thank you, I’ll try and check back more often. How frequently you update your website?

  • Fantastic blog! Do you have any tips and hints for aspiring writers? I’m planning to start my own blog soon but I’m a little lost on everything. Would you propose starting with a free platform like WordPress or go for a paid option? There are so many options out there that I’m totally confused .. Any ideas? Kudos!

  • I loved as much as you will receive carried out right here. The sketch is tasteful, your authored material stylish. nonetheless, you command get bought an edginess over that you wish be delivering the following. unwell unquestionably come more formerly again as exactly the same nearly very often inside case you shield this hike.

  • Hello, i think that i noticed you visited my web site so i got here to “return the want”.I am attempting to to find issues to improve my web site!I assume its good enough to make use of some of your ideas!!

  • fantastic post, very informative. I wonder why the other experts of this sector don’t notice this. You must continue your writing. I’m confident, you’ve a huge readers’ base already!

  • Hiya, I am really glad I’ve found this information. Nowadays bloggers publish just about gossips and internet and this is really annoying. A good blog with interesting content, that’s what I need. Thanks for keeping this site, I will be visiting it. Do you do newsletters? Cant find it.

  • Hi! This is kind of off topic but I need some guidance from an established blog. Is it very difficult to set up your own blog? I’m not very techincal but I can figure things out pretty quick. I’m thinking about setting up my own but I’m not sure where to start. Do you have any ideas or suggestions? Cheers

  • It’s appropriate time to make some plans for the future and it’s time to be happy. I have read this post and if I could I want to suggest you few interesting things or advice. Maybe you could write next articles referring to this article. I desire to read even more things about it!

  • Thank you so much for providing individuals with an extraordinarily breathtaking chance to read from this website. It is usually so ideal and also stuffed with amusement for me and my office friends to search your site at least thrice weekly to read the newest tips you have. And definitely, I am actually amazed concerning the exceptional information served by you. Selected two points in this post are unequivocally the most suitable I have had.

  • Wonderful blog! I found it while searching on Yahoo News. Do you have any suggestions on how to get listed in Yahoo News? I’ve been trying for a while but I never seem to get there! Thanks

  • Thanks, I’ve recently been looking for info approximately this subject for a while and yours is the greatest I have came upon so far. But, what in regards to the bottom line? Are you positive concerning the source?

  • Heya i’m for the first time here. I came across this board and I find It truly useful & it helped me out a lot. I hope to give something back and aid others like you aided me.

  • I was just looking for this info for a while. After 6 hours of continuous Googleing, at last I got it in your website. I wonder what’s the lack of Google strategy that do not rank this kind of informative web sites in top of the list. Normally the top sites are full of garbage.

  • I would like to thank you for the efforts you have put in writing this site. I’m hoping the same high-grade website post from you in the upcoming as well. Actually your creative writing skills has inspired me to get my own web site now. Actually the blogging is spreading its wings rapidly. Your write up is a good example of it.

  • I haven’t checked in here for some time as I thought it was getting boring, but the last few posts are great quality so I guess I’ll add you back to my everyday bloglist. You deserve it my friend 🙂

  • Hi there very cool site!! Guy .. Excellent .. Superb .. I will bookmark your site and take the feeds also¡KI am glad to find numerous useful info right here within the publish, we need work out extra strategies on this regard, thanks for sharing. . . . . .

  • Thank you for the sensible critique. Me and my neighbor were just preparing to do a little research about this. We got a grab a book from our local library but I think I learned more clear from this post. I am very glad to see such wonderful information being shared freely out there.

  • An additional issue is that video gaming has become one of the all-time most important forms of entertainment for people spanning various ages. Kids play video games, and also adults do, too. The XBox 360 is just about the favorite gaming systems for folks who love to have a lot of video games available to them, and who like to learn live with others all over the world. Many thanks for sharing your ideas.

  • Thanks for the sensible critique. Me & my neighbor were just preparing to do a little research on this. We got a grab a book from our local library but I think I learned more from this post. I’m very glad to see such excellent information being shared freely out there.

  • I found your weblog site on google and examine a couple of of your early posts. Proceed to maintain up the very good operate. I simply further up your RSS feed to my MSN News Reader. In search of forward to reading more from you afterward!…

  • Wonderful beat ! I would like to apprentice whilst you amend your website, how could i subscribe for a weblog site? The account aided me a applicable deal. I were a little bit familiar of this your broadcast offered bright transparent concept

  • Undeniably believe that which you stated. Your favorite justification seemed to be on the internet the easiest thing to be aware of. I say to you, I definitely get irked while people think about worries that they just don’t know about. You managed to hit the nail upon the top and also defined out the whole thing without having side effect , people can take a signal. Will likely be back to get more. Thanks

  • Its like you read my mind! You seem to know so much about this, like you wrote the book in it or something. I think that you can do with some pics to drive the message home a little bit, but instead of that, this is great blog. A great read. I will certainly be back.

  • Hey there just wanted to give you a brief heads up and let you know a few of the images aren’t loading properly. I’m not sure why but I think its a linking issue. I’ve tried it in two different internet browsers and both show the same outcome.

  • Thanks, I have recently been looking for information approximately this subject for ages and yours is the best I have found out till now. But, what in regards to the bottom line? Are you sure about the source?

  • I’ve been surfing online greater than 3 hours as of late, yet I by no means found any fascinating article like yours. It is lovely worth sufficient for me. In my view, if all website owners and bloggers made just right content as you probably did, the internet might be much more helpful than ever before.

  • Hi there! Would you mind if I share your blog with my facebook group? There’s a lot of people that I think would really enjoy your content. Please let me know. Thank you

  • you’re in reality a excellent webmaster. The web site loading pace is amazing. It seems that you’re doing any distinctive trick. Moreover, The contents are masterpiece. you have performed a fantastic job on this matter!

Comments are closed.


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


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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy