IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100914

Docket: M111102

Registry:
New Westminster

Between:

Calvin Brent Weiss
also known as Kelly Weiss

Plaintiff

And

William Roger
Koenig

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

And

Billion Air
Enterprises Ltd. doing business as

Ye
Old Welcome Inn and Ye Old Welcome Inn

Third
Party

Before:
The Master Keighley

Reasons for Judgment

[1]          
This is a motor vehicle claim. The plaintiff alleges that as a result of
the accident, which occurred on February 18, 2006, he suffered various injuries
including bilateral impairment of his hearing. The matter is set for seven days
of trial commencing October 17, 2011.

[2]          
On December 8, 2009, plaintiff’s counsel received a letter from counsel
for the third party, the Insurance Corporation of British Columbia, which, on
the last of its five pages, referred to an enclosed Notice to Admit, which
sought the following admissions:

1.         On
February 18, 2006 the Plaintiff was involved in a motor vehicle accident, with
a vehicle owned and operated by the Defendant, William Roger Koenig
(hereinafter referred to as the “motor vehicle accident”).

2.         Prior
to the date of the motor vehicle accident, the Plaintiff had a bilateral mild
to moderate sensorineural hearing loss. 

3.         As of
at least May 26, 2006, the Plaintiff had the same bilateral mild to moderate
sensorineural hearing loss as he had prior to the date of the motor vehicle
accident.

4.         The Plaintiff has no decrease
in his hearing in either his left or right ear as a result of the motor vehicle
accident.

[3]          
Terri Griffith, a legal secretary and employee of counsel for the
plaintiff has deposed as follows:

9.         On
December 8, 2009, our office received a letter from Ms. Penelope Pearson,
counsel for the Third Party, Insurance Corporation of British Columbia, dated
November 27, 2009, directed to Mr. Perry J. Armitage, solicitor for the
Plaintiff. I briefly reviewed the 5 page letter, which I noted was broken into
several categories. On the last page of the letter, under a section entitled
“experts reports” was a paragraph referring to a Notice to Admit. I
inadvertently assumed the letter dealt strictly with information and document
production, and procedural matters. I failed to take notice of the Notice to
Admit or the paragraph on page 5 that referred to it. Because I was extremely
busy at the time with more pressing matters to attend to, I simply filed the
letter to be dealt with at a later time. Attached hereto and marked Exhibit “C”
to this my Affidavit is a copy of that letter.

10.       On
April 20, 2010, I pulled the file to work on. Upon further review of Ms. Pearson’s
letter dated November 27, 2009, I realized for the first time it contained a
Notice to Admit dated November 30, 2009, whereupon I immediately brought it to Mr. Armitage’s
attention. Attached hereto and marked Exhibit “D” to this my Affidavit is a
copy of the Notice to Admit dated November 30, 2009.

11.       On
April 20, 2010, Mr. Armitage served via fax a letter to Ms. Pearson
serving the Reply of the Plaintiff to the Notice to Admit of the Third Party,
Insurance Corporation of British Columbia, and advising he was not aware until
that day that we received the Notice to Admit and requested their consent to
withdraw the deemed admissions. Attached hereto and marked Exhibit “E” to this
my Affidavit is a copy of that letter together with the Reply of the Plaintiff
and the fax confirmation sheet.

12.       On May 11, 2010, Mr. Armitage
received an email from Ms. Pearson attaching a letter dated May 11, 2010,
advising they are not prepared to consent to a withdrawal of the admissions.
Attached hereto and marked Exhibit “F” to this my affidavit is a copy of that
letter.

[4]          
The reply referred to by Ms. Griffith simply denies the allegations
of fact alleged in paragraphs 2, 3, and 4 of the Notice to Admit. No reply
having been received in the time limited, the plaintiff was deemed to admit the
allegations contained in the Notice to Admit.

[5]          
That the failure of the plaintiff to respond to the Notice to Admit in a
timely way was the result of an inadvertence is not in issue. Neither is the timeliness
of this application.

[6]          
The plaintiff now brings this application seeking to withdraw the deemed
admissions. The third party, in its application response, indicates its consent
to a limited withdrawal on the following terms:

The application respondent is
prepared to consent to a withdrawal of paragraph 4 of the Notice to Admit, as
it pertains to the left ear, only, for a temporary decrease in hearing between
February 18, 2006 and May 26, 2006.

[7]          
The plaintiff seeks to withdraw the admissions in their entirety.

The Application

[8]          
The application is brought pursuant to Supreme Court Civil Rule 7-7(5).
The relevant provisions of Rule 7-7, which are in substantially the same form
as those in the former Rule 31, read as follows:

Notice to admit

(1)        In an
action in which a response to civil claim has been filed, a party of record
may, by service of a notice to admit in Form 26, request any party of record to
admit, for the purposes of the action only, the truth of a fact or the
authenticity of a document specified in the notice.

Effect of notice to admit

(2)        Unless
the court otherwise orders, the truth of a fact or the authenticity of a
document specified in a notice to admit is deemed to be admitted, for the
purposes of the action only, unless, within 14 days after service of the notice
to admit, the party receiving the notice to admit serves on the party serving
the notice to admit a written statement that

(a)        specifically
denies the truth of the fact or the authenticity of the document,

(b)        sets
out in detail the reasons why the party cannot make the admission, or

(c)        states
that the refusal to admit the truth of the fact or the authenticity of the
document is made on the grounds of privilege or irrelevancy or that the request
is otherwise improper, and sets out in detail the reasons for the refusal.

[…]

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.

The Plaintiff’s Submissions

[9]          
The plaintiff says that the test for withdrawal of an admission was
summarized by former Master Horn in the case of Hamilton v. Ahmed,
[1999] B.C.J. No. 311, the test being: 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.

[10]       
The plaintiff further says if the applicant is able to establish that an
admission was made inadvertently, hastily, without knowledge of the facts, or
where the facts came to the attention of the court only after the admission was
made, an application to withdraw an admission will be decided on the simple
balance of prejudice and considerations of the interest of justice: Doman
Forest Products Ltd. v. GMAC Commercial Credit Corp., [2005] B.C.J. No. 118
(SCBC). This case, I note, dealt with an admission made in pleading, not with a
deemed admission.

[11]       
At the time of the accident, the plaintiff was employed by the Canada
Border Services Agency as a border services officer. As such, his job was to
assess the eligibility of individuals wishing to enter Canada and possibly to
import goods. He says, unsurprisingly, that the ability to hear clearly is
important. The plaintiff indicates that he now has difficultly discerning subtle
changes in voice tone and character, particularly in the case of higher
pitched, and female voices. The plaintiff says that following the accident he
experienced hearing loss in both ears. He says that although hearing
loss was more significant in his left ear than his right, he did complain to
his doctor about hearing loss in his right ear as well.

[12]       
In a written statement provided to the Insurance Corporation of British
Columbia on February 21, 2006, the plaintiff says, in part:

I have sore neck, back and left
ear – my hearing seems to be muffled – bruised left knee and my left knee,
shoulder.

[13]       
He also notes that in a written memorandum provided to Dr. Holly Stevens,
an ENT specialist, he wrote in part:

Since Date of auto accident [namely: 18FEB2006], I have
noticed my Hearing is impaired; particularly, left ear hearing/Air bag injury
hearing loss????

My ears have a whistling/buzzing
noise and my high frequency (pitch) hearing seems bad. I can hear
distorted/muffled sounds in quiet environments but in noisy environments I feel
quite deaf (e.g. Wal-Mart/shopping malls, restaurants, etc.).

[14]       
The plaintiff also notes in a memorandum written to Dr. Mike
Surkan, his family physician, on May 24, 2006:

Since the date of the auto accident (namely: 18
February/2006) still experiencing hearing impairment…

Hearing still impaired: Buzzing/whistling/ringing sound seems
ever present (i.e. 24/7) with multiple tones and volume intensities from faint
to very loud. Also, left ear area still seems to be weighted down – still a
muffled type of hearing; i.e., no clear hearing and still seems like water
stuck in ear. Also, while in the shower, it still seems as though the telephone
is constantly ringing.

Also of note, although
buzzing/whistling/ringing noise seems to be in both ears with the left ear
seeming to have a louder and greater degree of same, left ear area also has
intermittent pain and or pain throbs.

[15]       
 Dr. Surkan provided a medical report dated August 13, 2007 with
respect to his treatment of the plaintiff. The report contains, in part, the
following:

I first met Kelly on September 12, 1988 and have seen him
intermittently for health problems and check ups from that time to his last
visit of April 19, 2007. Over this period of 18 years we had no discussions
about muscular injury, back pain or hearing problems.

[…] He had multiple complaints, a headache in the left side
of his temple, pain across his shoulders, between his shoulder blades, mid
back, some ache in his right shoulder with any lifting, his left ear felt like
it was underwater and his hearing was very muffled.

[…] Examination of his ear was normal, he had bruising on
his left knee. The diagnosis was contusion to his left ear, possibly from the
airbag, possibly a mild concussion because of the headache, contusion to his
left knee and strain of his neck.

[…]

Because of the persistent problems with his ear and the
decreased hearing, he was assessed on April 12, 2006 by Dr. Holly Stevens
an ENT specialist in Penticton. An audiogram exam showed that he had a
bilateral hearing loss, mild on the right and severe on the left. She was
unable to explain the mechanics of the injury but she stated that some people
have hearing loss as a result of relatively mild head injuries. Because of
concerns of damage to his vestibular aqueduct in his ear, which could be a
predisposing factor, he had an MRI done of his brain to check his ear and it
was normal. Because he had a mild hearing loss on the right, she suggested
hearing aids might help the severe hearing loss on the left and mild hearing
loss on the right. She was unable to give any prognosis.

[…]

On a visit of December 21, 2006, his hearing had not
improved, his left ear still felt obstructed. His ear examination was normal.

[…]

His next and last visit was on April 19, 2007. He did not
feel right since his accident of over one year ago. He was still very aware of
his left ear. There was a “wowing” side in his left ear especially when
driving. It sounded like a roar or hiss. He was having some problem with
hearing if he needed to use his left ear. He also seemed sensitive to noise in
his left ear at times.

[…] It appears that he has had
some irreversible hearing loss, which can only be helped by hearing aid
amplification. […] He will have to invest extra time on an exercise program
to keep his scarred muscles flexible and he will have to, over time, invest
money in hearing aids to improve hearing.

[16]       
On April 12, 2006, Dr. Stevens provided a report to Dr. Surkan
following her examination of the plaintiff. She noted the following:

[…] As soon as he had his wits about him he did notice that
his hearing seemed distorted and muffled on the left side and in the ensuring
days became aware that it was decreased compared to the right. He also became
aware of a buzzing left tinnitus. […] He finds the difference in the hearing
to be somewhat disconcerting but he does not sway or lose his balance.

Kelly has worked as an immigration officer since 1989. He has
not had significant history of noise exposure and has no other obvious risk
factors for hearing loss. He does not recall any trouble with his ears
when he was younger and did not consider himself hearing impaired prior to the
accident.

[…]

On physical examination there is no significant adenopathy
and nasal exam and oral cavity are unremarkable. […] On the left the external
canal looks intact as does the tympanic membrane. There is no evidence of any
type of trauma.

An audiogram done here in the office shows that he has a
bilateral sensorineural hearing loss of mild to moderate degree on the right
and moderately severe to severe degree on the left. Discrimination is well
maintained at adequate volumes and middle ear pressures are normal.

This man does seem to have
sustained some left sided hearing loss as a result of the motor vehicle
accident. I am unsure as to the exact mechanism as there is no obvious direct
injury to the ear or head. I have experienced some patients who seem to suffer
hearing loss as a result of relatively mild head injuries. […] I find it is
impossible to say whether his hearing loss will reverse but I wouldn’t expect
that to be the case. His hearing is somewhat impaired on the right side as well
so he may find amplification useful in the future. I have asked him to see
Cheryl Galloway for another audiogram and she will discuss amplification with
him at that time.

[17]       
In a further report dated May 2, 2006, Dr. Stevens noted:

We saw Mr. Weiss for audiologic assessment on May 2,
2006. There were no current complaints of otalgia, otorrhea, aural fullness or
dizziness. However, Mr. Weiss reported constant tinnitus greater in
the left. No history of occupational or recreational noise exposure was
reported. He did however report a sudden change in hearing greater in the left
ear following deployment of his air bag system during a motor vehicle accident.

Our testing revealed a mild to
moderate sensorineural hearing loss bilaterally consistent with the reported
sudden noise exposure and possible head trauma during his accident.

[18]       
Thus says the plaintiff, there is a triable issue to be determined,
namely, whether as a result of the accident the plaintiff has suffered
bilateral hearing loss. He says that the omission was made inadvertently,
that it is not true, that the withdrawal of the admission will not prejudice
the third party and that he has not delayed in applying to withdraw the
admission. Accordingly, he says the order sought should be granted.

Third Party’s Position

[19]       
The third party says the evidence supports its position that the
plaintiff experienced hearing loss prior to the motor vehicle accident of
February 18, 2006. Ms. Dougans points out that the clinical records of Dr. Surkan
contain an entry for September 21, 2001 which indicates:

hobbies, shooting pistols, woodworking

FH…fa…â hearing

[20]       
Ms. Dougans also notes the results of the MRI study which was
“unremarkable”.

[21]       
Ms. Dougans also refers to a letter from Dr. Surkan to Canada
Life Creditor Insurance office dated May 30, 2006 in which Dr. Surkan
states, in part:

My assessment from reading the
audiology reports is that he has bilateral hearing loss, which he may not have
been aware of prior to the accident but is more conscious of now. I cannot
correlate his hearing loss with the accident.

[22]       
Ms. Dougans also notes that following Dr. Stevens’ earlier
letters to Dr. Surkan, she followed with her letter of June 5, 2006:

Further to my note of April 12, I have seen Kelly on a couple
of occasions. As it turns out, the hearing loss which we initially recorded in
his left ear subsequently reversed. He was tested by Expert Hearing Solutions
on May 2 and then again here on May 24. It shows a symmetrical bilateral mild
to moderate largely high tones hearings loss. He did undergo a MRI scan,
as after he had initially presented with left sided loss, I wondered whether he
might have enlarged vestibular aqueducts which may predispose him to a hearing
loss from a relatively minor trauma which would not necessarily cause loss in
other people. The MRI did not demonstrate this or any other abnormality.

On his last visit to me he
continued to complain of left sided tinnitus and a sensation of water in the
left ear. Examination was normal. Hopefully over time his ear will settle.

[23]       
Finally, notes Ms. Dougans, Dr. Stevens, on August 15, 2006
provided a report to the Insurance Corporation of British Columbia which
included the following:

Kelly Weiss was initially assessed here on April 12, 2006. He
complained of hearing loss and distortion in his left ear. Please see the
audiogram which was done at that time which suggested that the left ear had
been affected by the trauma related to the MVA. An MRI was ordered to see
whether there was evidence of a patent vestibular aqueduct which might
predispose him to hearing loss as a result of mild to moderate trauma. The MRI
did not show any evidence of abnormality. Mr. Weiss was subsequently
assessed on May 2^nd at Expert Hearing Solutions. The previously
noted increase in left thresholds seems to have corrected and he was found to
have a symmetrical mild to moderate hearing loss mostly in the mid and high
tones. He underwent further audiometric testing here on May 26^th and
again his hearing was found to be symmetrical.

Mr. Weiss indicted to me that he felt that the most
likely mechanism of injury was related to release of air bags, which he
believes was associated with brief loss of consciousness. 

Mr. Weiss does have a bilateral mild to moderate
sensorineural hearing loss. If there were some genetic predisposition, one
could attribute this symmetrical loss to his age. Otherwise, one would not
necessarily expect a hearing loss of that degree. However, because of its
symmetrical nature, and because he does not have any complaints related to the
right ear which shows hearing similar to that in the left, it is reasonable to
assume that his current audiogram represents his hearing status prior to the
injury.

The audiologist’s report confirms
that Mr. Weiss currently has a symmetrical mild to moderate sensorineural
hearing loss. 

[24]       
Thus, says Ms. Dougans, it is apparent that the plaintiff suffered
some degree of hearing loss prior to the accident and the substantial weight of
medical evidence suggests that his present hearing difficulties, to the extent
to which they remain unresolved, are not a result of the motor vehicle
accident.

[25]       
Ms. Dougans says that if the deemed admissions are withdrawn, the
third party will be obliged to engage an Otolaryngologist to conduct a medical
examination of the plaintiff, review all the medical reports with respect to
hearing loss, and investigate scientific literature with respect to the
possibility of a bilateral hearing loss resulting from air bag deployment or
the other mechanisms of this motor vehicle accident. She anticipates “several
thousands of dollars” will be required to undertake such an investigation. As a
result, she says, the third party will be significantly prejudiced by the
withdrawal of the deemed admissions.

Discussion

[26]       
The pool of medical evidence presently available does suggest some
uncertainty about the nature and cause of the plaintiff’s hearing complaints.
The plaintiff has, however, been adamant from the outset that the hearing loss
is bilateral and was not evident prior to the motor vehicle accident. He should
have the opportunity to have his credibility tested against the backdrop of
medical evidence both pro and con, presented at trial. As to the third party’s
claim of prejudice, where the only prejudice to a party seeking to rely on
admissions is that of being deprived of relying on the admissions occasioned
through the inadvertence of a solicitor, and where the evidence disclosed a
fair issue to be tried, the interests of justice have been deemed to require
that the applicant not be deprived of a trial on the merits: Can-Am Produce
and Trading Ltd. v. Moradian, [1995] B.C.J. No. 2055 (BCCA).

[27]       
No other prejudice is alleged. Should the third party succeed in its
defence, its costs, including costs relating to the retention of its experts, may
be recoverable. It should not be relieved of the burden of establishing its
case where, as here, the interests of justice favour withdrawal of the
admission.

Result

[28]       
The admissions deemed to have been made by the plaintiff’s failure to
reply to the notice to admit dated November 13, 2009 are withdrawn.

[29]       
Costs will be in the cause.

“Master Keighley”