IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100923

Docket: 42785

Registry:
Vernon

Between:

Dwight
Douglas Surerus

Plaintiff

And

Richard
Ivan Leroux

Defendant

Before:
Master Shaw

Reasons for Judgment

[1]            
This is an application by the defendant for leave to withdraw the
admission of liability which was pled in the statement of defence.

[2]            
The applicant relies on Rule 31(5)(c) of the former Rules of Court,
as the notice of motion had been filed on May 28, 2010. The current rule is
Rule 7-7(5).

[3]            
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.

[4]            
The plaintiff opposes the granting of the relief. The action arises as a
result of a motor vehicle accident occurring on September 3, 2006 in Vernon,
British Columbia. The plaintiff claims damages.

[5]            
A writ and statement of claim was filed on October 6, 2008.

[6]            
On October 29, 2008, the adjuster for the plaintiff’s claim instructed
defence counsel to admit liability. The adjuster gave evidence that she gave
those instructions without having turned her mind to the issue of negligence.

[7]            
A statement of defence was filed and served.

[8]            
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.
Counsel for the defence states that it was then that he was alerted to the
faulty brake information.

[9]            
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.

[10]        
On September 14, 2009, the plaintiff responded by letter advising that
they were not prepared to consent to the withdrawal of the admission.

[11]        
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.

[12]        
The plaintiff also gave evidence in this hearing that at the accident
scene he overheard the defendant saying he had been working on his brakes prior
to the accident.

[13]        
The defendant’s position is the adjuster made determination of liability
before knowing all the facts. In her affidavit, the adjuster says at page 4:

I determined that fault lay with
the Defendant for insurance purposes as this was a rear end accident where
there were no actions on the part of the Plaintiff that might have contributed
to the collision.

[14]        
The defence submits that there is a triable issue and that is: were
faulty brakes the reason for the motor vehicle accident? The defence submits this
issue should be decided at trial.

[15]        
The plaintiff submits that the defence knew that the plaintiff was
alleging one of the causes of the accident was faulty brakes. In the statement
of claim, the plaintiff pleads as follows:

4.         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;

(c)        failing
to give any audible or visible warning of his approach;

(d)        such other negligence as may be
advised.

[16]        
The plaintiff says there is 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 plaintiff submits that the
defendant was driving a vehicle in an unsafe condition and the defendant
admitted liability.

[17]        
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.

[18]        
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.

[19]        
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.

[20]        
I am satisfied that the interests of justice do not justify the
withdrawal of the deemed admission.

[21]        
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.

[22]        
The trial date scheduled for April 11, 2011, is not imminent and,
therefore, not necessarily at risk for losing the date.

[23]        
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.

[24]        
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.

[25]        
I find that the interests of justice would not be served by allowing the
withdrawal of the admission at this date.

[26]        
In the result, I dismiss the application of the defendant. Costs will go
to the plaintiff in any event of the cause.

“Master
M.E. Shaw”

MASTER SHAW