Earlier this week, in the case of Finch v. Anderson, 2014BCSC 2008, reasons for judgment were released in an application to withdraw the defendants’ earlier admissions of negligence and liability.

The collision occurred when a bus operated and driven by the defendants rear-ended the plaintiff’s vehicle, which had been stopped in the bus lane on Highway 99 in Surrey, B.C., allegedly due to a failed engine. The defendant driver made a statement on the day of the collision, relaying his account of where the accident had transpired, and the circumstances leading up to the collision. The plaintiff made a report to ICBC immediately following the accident, and eleven days after the accident she gave a statement regarding the accident circumstances. The defendant corporation investigated the accident, resulting in an internal determination that the defendant driver improperly obstructed his view and failed to distance himself from a large truck that had been travelling in the lane next to him, just prior to the accident. On the basis of this internal report, an admission of liability was made.

During examination for discovery, the defendants learned of certain facts that were not known when the admission of liability was made. In their application, the defendants submitted that this evidence raised questions surrounding the circumstances of the plaintiff’s presence on the side of the highway, pointing to facts which now appeared to show that the plaintiff’s vehicle was not disabled and that she may have been pulled over for the purpose of taking or making a phone call, and revealed a discrepancy of approximately two kilometers regarding the accident location. Based on this evidence, the defendants argued that the plaintiff was in contravention of section 187 of the Motor Vehicle Act, and pointed to a number of BC Supreme Court and Court of Appeal ruling which found drivers stopped on a highway to be negligent.

Under Supreme Court Civil Rule 7-7(5), an admission in a pleading cannot be withdrawn other than by consent of with leave of the Court The applicable test was recently set out in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104:

[27]      With respect to applications under Rule 7-7(5)(c), the leave to withdraw an admission made in a pleading, the principles to be applied and the factors to be considered have been summarized and endorsed by the Court of Appeal in Munster & Sons Development Ltd. v. Shaw, 2005 BCCA 564 (CanLII) (at para. 10) as follows:…1. The test is 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 the circumstances should be taken into account including the following:a. the admission has been made inadvertently, hastily, or without knowledge of the facts. 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.

In allowing the application, the Court stated:

[22]   Here whether the plaintiff was negligent is a triable issue. The admission, although not inadvertent, appears to have been made considering only the actions of the defendant driver and not the potential negligence of the plaintiff and without full knowledge of the facts. Although slim, there were facts raised on the examinations for discovery that highlighted the potential for such negligence. [23]  Clearly the admission is not a purely factual one – an admission of negligence and liability involves mixed fact and law. [24]   As to prejudice, the plaintiff suggested that she has been deprived of the ability to fully investigate the circumstances of the accident and that she would have done so promptly had she known liability would be disputed. [25] There were four independent witnesses to the accident that were identified by the defendant driver. Since the hearing of this application, I have been advised that three of those witnesses were in fact contacted by counsel for the plaintiff prior to this application. Although their memories may have faded, there is no indication that the plaintiff’s ability to investigate this matter has been impaired. [26]   I am satisfied that there is no significant prejudice to the plaintiff here.