Attempted Withdrawal of Admission of Liability
In the recent case of SURERUS V. LEROUX, 2010 BCSC 1344 (“SURERUS”) the court considered the defendant’s application for leave to withdraw the admission of liability which was plead in the statement of defence. The application was made on May 28, 2010, so the old Court Rule 31(5)(c) was considered.
The action was a claim for damages which arose out of a motor vehicle accident occurring on September 3, 2006. A writ and statement of claim had been filed on October 6, 2008. On October 29, 2008, the ICBC adjuster for the plaintiff’s claim instructed defence counsel to admit liability. At the hearing for the application, the adjuster gave evidence that she gave those instructions without having turned her mind to the issue of negligence. A statement of defence was filed and served accordingly.
Nearly a year later, on August 26, 2009, defence counsel interviewed the defendant, Mr. Leroux. During that meeting, counsel for the defence was told by the defendant that the brakes failed on his vehicle. The defendant said the brake pedal depressed to the floor without effect just prior to the motor vehicle accident. It was not until this point that defence counsel became alerted to the faulty brake information.
On September 1, 2009, counsel for the defence sent a letter to counsel for the plaintiff advising that the defendant wished to withdraw the admission that the motor vehicle accident was negligently caused by the defendant. On September 14, 2009, the plaintiff responded by letter advising that they were not prepared to consent to the withdrawal of the admission.
On April 6, 2010, counsel for the defence conducted an examination for discovery of the plaintiff. The plaintiff was aware of a faulty brake discussion between the defendant and the police officer at the scene of the accident. During the examination for discovery, the plaintiff stated he observed the police officer checking the brake pedal in the car and the brake pedal went completely to the floor. The plaintiff also gave evidence in hearing itself that at the accident scene he overheard the defendant saying he had been working on his brakes prior to the accident.
The defendant’s position at the hearing was that the adjuster made a determination of liability before knowing all the facts and that there was a triable issue as to whether or not the faulty brakes were the reason for the motor vehicle accident.
The plaintiff submitted that the defence knew or should have known that the plaintiff was alleging one of the causes of the accident was faulty brakes because the statement of claim included:
The said motor vehicle collision was caused wholly by the negligence of the Defendant, Richard Ivan Leroux, particulars of which are as follows:
(a) driving the motor vehicle in an unsafe mechanical condition with defective brakes and steering mechanism;
(b) operating a motor vehicle on a highway without any or effective brakes or alternatively failing to apply the brakes in time to avoid a collision;
The plaintiff said there was prejudice to the plaintiff in that there would now be an inquiry into the mechanical status of a vehicle more than four years after the motor vehicle accident.
The court made reference to the case 374787 B.C. LTD. V. GREAT WEST MANAGEMENT CORP., 2007 BCSC 582, and determined that it must consider whether in the circumstances of the case the interests of justice would justify the withdrawal of the admission. The relevant factors within this consideration were: delay, loss of a trial date, a party being responsible for an erroneous admission, inadvertence in the making of the admission and estoppel.
In reviewing these factors, the court considered that it had been almost four years since the accident, discoveries had been conducted, and a trial date had already been scheduled. The length of the delay, the absence of evidence that the vehicle was even available for inspection, and the fact that plaintiff had specifically pleaded the condition of the brakes were sufficient for the determination that it was not in the interests of justice to allow the withdrawal of the admission. The application was dismissed with costs to the plaintiff in any event of the cause.
SURERUS is an example of a situation where the fundamentally important concern in our civil courts of trying each case on its merits is overcome by the prejudice and unfairness that this would cause to one of the parties. Balancing the interests of justice is a weighing process undergone by our court system every single day. Litigants must be aware of this process.
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