IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Hurn v. McLellan,

 

2011 BCSC 447

Date: 20110408

Docket: 09 3547

Registry:
Victoria

Between:

Andrew Hurn

Plaintiff

And:

Colleen McLellan

Defendant

Before:
Master Bouck

Reasons for Judgment

Counsel for Plaintiff:

C. Lee

Counsel for Defendant:

R. Ashmead

Place and Date of Hearing:

Victoria, B.C.

March 29, 2011

Place and Date of Judgment:

Victoria, B.C.

April 8, 2011



 

Introduction

[1]          
The parties bring cross-applications in this personal injury action.
Following a nearly full day hearing, both applications were dismissed with
written reasons to follow. The parties were ordered to bear their own costs
with respect to the applications.

The Applications

[2]          
The defendant’s application seeks leave to amend her statement of
defence.

[3]          
The application is more properly framed as seeking leave to withdraw an
admission of liability in that pleading. If leave were granted, the proposed
amendments to the pleading would likely follow.

[4]          
The defence application first came before the court on March 22, 2011. The
sitting Master ordered the application adjourned to allow the plaintiff to
bring his cross-application.

[5]          
In a notice of application filed March 23, 2011, the plaintiff seeks the
following relief:

1.  The Defendant produce a copy of the Discovery Report,
prepared by Heather Jaeb and dated November 23, 2010, to the Plaintiff
forthwith;

2.  The Defendant produce copies of all documents contained
in the files of her solicitors and insurer(s) relating to the matters of
liability, damages, and credibility;

3.  The Defendant’s Application to amend her Statement of
Defence, originally set for hearing on March 22, 2011, and adjourned to March
29, 2011, be further adjourned pending receipt and review of the documents
above;

4.  Costs of this Application; and

5.  Such further and other Order
as to this Court seems just.

[6]          
The relief sought in item 3 presented somewhat of a conundrum in terms
of the sequence in which the parties’ applications should be heard. It appeared
logical that the defendant’s application should first proceed. If that
application were dismissed, there seemed no purpose in ordering the relief
sought in items 1 and 2 of the plaintiff’s application.

The Facts

[7]          
The plaintiff is alleged to have suffered injuries in a motor vehicle
accident which occurred on August 13, 2007. The usual heads of damages are pled
in the statement of claim filed on August 12, 2009.

[8]          
The accident occurred in a parking lot. Both counsel describe the
collision between the parties’ vehicles as a “T-bone” accident. The front end
of the defendant’s vehicle struck the right side of the plaintiff’s vehicle.

[9]          
Following the accident, the defendant’s insurer, ICBC, carried out an
investigation of the circumstances of the collision. A statement was taken from
the plaintiff on August 15, 2007. Two drawings of the accident scene are
attached to the statement. The plaintiff was not represented by counsel at the
time.

[10]       
The plaintiff describes the circumstances of the collision as follows:

I was in my 86 Suzuki Samurai
bearing plate 725ALP. I was with my girlfriend, Sarah Grounds, who was in the
front passenger seat … We were in Fairways on Quadra Street, and heading to a
movie. We had been in the parking lot at Quadra by Kings Road. I would say I
was going about 25 km/hour. The other driver was straightening out to go
forward, when I was going past her. The front corner of her car, hit the right
side rocker panel on my vehicle. It spun the back right end of my vehicle out
and so we ended up kind of facing her after we were hit …

[11]       
ICBC subsequently instructed defence counsel to admit Ms. McClellan’s
liability for the accident. The statement of defence containing this admission
was filed on January 28, 2010.

[12]       
Given the admission of liability, plaintiff’s counsel took no steps to
interview the defendant or indeed look for witnesses to the accident.

[13]       
This action is set to proceed to trial on June 13, 2011 for three days.
A trial management conference will take place on May 3, 2011.

[14]       
The parties intend to mediate the plaintiff’s claim on May 11,
2011.

[15]       
On November 9, 2010, the plaintiff was examined for discovery. Defence
counsel prepared a written Discovery Report summarizing the results of that
examination.

[16]       
The Discovery Report was forwarded to ICBC on or about November 23,
2010. Defence counsel deposes in her affidavit sworn March18, 2011:

… it did become apparent after
the Discovery that a change in liability was required. Recommendations to our
client on this subject were sent out in our Discovery Report, which is a
privileged document.

And further:

It is my belief that the
[instructing adjuster at ICBC] was not able to meet with his managers and
supervisor to discuss the Discovery Report until in or about February 2011.
After [the instructing adjuster] met with his managers and supervisor, we
received instructions on February 16, 2011 to bring an application to change
liability from “Admit” to “Deny”.

[17]       
Defence counsel then took steps to set down this application including
ordering a transcript of the plaintiff’s examination for discovery.

[18]       
Plaintiff’s counsel received the defendant’s application on March 8,
2011. According to the evidence, this is the first notice given to the
plaintiff that liability was to be an issue in the proceeding.

[19]       
The proposed amendments to the statement of defence with respect to
liability are:

3.  Particulars of the negligence of the Plaintiff are as
follows:

(a)  In driving the motor vehicle
without due care and attention, contrary to the provisions of s. 144 of the
Motor Vehicle Act . R.S.B.C. 1996, c. 318 and amendments thereto;

(b)  In failing to keep any or, in
the alternative, an adequate lookout;

(c)  In driving the motor vehicle
without any or, in the alternative, with defective brakes or, in the further
alternative, in failing to apply the brakes of the motor vehicle in time to
avoid the collision;

(d)  In failing to keep the motor
vehicle under proper or any control;

(e)  In failing to take reasonable
or proper or any precaution to avoid the collision;

(f)  In driving the motor vehicle
while his ability to drive was impaired by alcohol, drugs, fatigue, illness, or
any combination thereof;

(g)  In failing to reduce the speed
of the motor vehicle reasonably or in time to avoid the collision or, in the
alternative, in failing to stop the motor vehicle in time to avoid the
collision;

(h)  In failing to turn out
reasonably or in time to avoid the collision or in failing to direct the course
of the motor vehicle to prevent it from coming in to the collision when the
collision was, or should have appeared, imminent;

(i)  In driving without proper care
and attention having regard to the time and place of the accident, the climatic
conditions, the nature of the roadway, the traffic that was on the roadway, the
mechanical condition of his motor vehicle and his own physical and mental
condition;

(j)  In failing to give any or
adequate warning to the Defendant when the collision was, or should have
appeared, imminent;

(k)  In failing to take any or any adequate evasive steps
when he knew or ought to have known that a collision was imminent.

[20]       
The evidence obtained at the plaintiff’s examination for discovery which
purports to support these amendments is stated to be:

(a)  The Plaintiff alleges his
Suzuki was stopped in the parking lot when he first made eye contact with the
Defendant.

(b)  The eye contact between the
parties first occurred just after the Defendant finished backing/reversing her
Ford out of a parking stall, stopped and then changed direction to a forward
motion.

(c)  Prior to the Ford proceeding
to move forward towards the Suzuki, the Plaintiff estimated that the distance
between the two vehicles was 30 or 40 feet.

(d)  The Plaintiff looked left, looked
straight, looked left and then back at the Defendant before he started to
proceed forward in his Suzuki.

(e)  The Plaintiff alleges he saw
the Defendant’s Ford start to move forward at approximately 5 kms per hour and
he made eye contact with the Defendant a second time.

(f)  The Plaintiff states he
started to move his Suzuki and was shifting from first gear into second gear,
and was traveling between 5 to 10 kms per hour, when his passenger warned him
that the Suzuki was going to be hit. The Plaintiff then turned to the right to
look outside the passenger window and he saw the Ford when the motor vehicle
collision occurred.

(g)  The Plaintiff estimated that the Defendant was
traveling between 20 kms per hour and 40 kms per hour prior to impact and the
Defendant made no attempt to slow down.

[21]       
The original statement of defence includes a plea of contributory
negligence on the part of the plaintiff.  The plea reflects what is commonly
known as the seatbelt and headrest defences.

The Law

[22]       
With the dismissal of the defendant’s application, the relief sought in
the plaintiff’s application becomes moot.

[23]       
Thus, it is only necessary to address the law with respect to the
defence application.

[24]       
The defendant’s notice of application seeks leave to amend the statement
of defence in a form attached as Schedule “A”.  The legal basis for the relief
is said to be Rule 6-1 of the Supreme Court Civil Rules SCCR”)
and various common law authorities which address the amendment of pleadings.

[25]       
 In argument, defence counsel conceded that the proposed amendments 
require the withdrawal of an admission. However, counsel further argued that
the test to be met on either type of application is the same.

[26]       
I am unable to accept that submission. There are similar and overlapping
considerations for the court on these two types of applications. However, to
adopt the submissions of plaintiff’s counsel, the “high bar” threshold to
obtain leave to withdraw an admission must be met before the “low bar” threshold
to obtain leave to amend a pleading will follow. Thus, the legal test to be met
by the defence is with respect to the withdrawal of an admission.

[27]       
Rule 7-7(5) of the SCCR  provides that:

7-7(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.

[28]       
The principles which govern an application to withdraw an admission of
fact are as follows:

1.  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 of the circumstances should be
taken into account including whether:

(a) the admission has been made
inadvertently, hastily or without knowledge;

(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.

Hamilton v. Ahmed (1999), 28 C.P.C. (4th)
139 (B.C.S.C.) at para. 11, as approved in Munster & Sons Developments
Ltd. v. Shaw
, 2005 BCCA 564.

[29]       
More recently, the test has been articulated by the court in 374787
B.C. Ltd. v. Great West Management Corp.,
2007 BCSC 582 at para. 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 facts, 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 an admission and
estoppel …

[30]       
The question of fault for the accident is one of mixed fact and law: Bedwell
v. McGill,
2008 BCCA 6 at paras. 33 to 34, foll’g Housen v. Nikolaisen, [2002] S.C.J. No. 31, [2002]
2 S.C.R. 235 at para. 27 (S.C.C.), per Iacobucci and Major JJ.

[31]       
However, whether the admission sought to be withdrawn is one of fact,
law or mixed law and fact, the same legal test applies: Nesbitt v. Miramar
Mining Corp.,
2000 BCSC 187 at para. 6.

[32]       
It is not enough to show that triable issue exists. The applicant must
show that, in all of the circumstances, the interests of justice require the
withdrawal of the admission: Rafter v. Paterson (November 7, 2007),
Vancouver No. B924884.

[33]       
Moreover, even if a trial date is not imminent and the applicant gave
early notice of the proposed withdrawal of the admission, delay in bringing an
application for such relief might in itself be a “concern that cannot be
overcome”: Sureus v. Leroux, 2010 BCSC 1344.

Discussion

[34]       
In the circumstances of this case, the interests of justice militate
against allowing the defendant’s withdrawal of the admission of liability.

[35]       
First, if the admissions were to be withdrawn, it is highly probable
that the upcoming trial dates will be lost. The trial dates were set on the
assumption that the only issue for determination is the plaintiff’s damages.
Not only would the question of liability add to the time required for trial,
but the plaintiff would also be compelled to undertake his own investigation on
liability. Such an investigation might well include an examination for
discovery of the defendant. It is reasonable to presume that an investigation
will not be concluded before trial.

[36]       
Second, the plaintiff has conducted this litigation relying on the
admission for more than one year. The plaintiff’s investigation of the accident
details is hampered by the passage of time.

[37]       
Third, the defendant is responsible for making the admission. The
admission of liability was made after the defendant’s insurer had conducted its
own investigation. There is no suggestion in the evidence that this
investigation was rushed or haphazard or delinquent in any way.

[38]       
Fourth, there has been delay in bringing this application. The
application came before the court more than one year after pleadings were
closed and a little over three months before trial. It is possible, although by
no means a given, that the prejudice to the plaintiff would appear less severe
had the application been brought immediately following the examination for
discovery. However, it is not the fault of the plaintiff that ICBC’s administrative
challenges caused delay. The defendant’s insurer is not to be treated
differently from other litigants on this or any other type of application.

[39]       
As the court states in Nesbitt v. Miramar Mining Corp., supra:

It would not be in the interests
of justice or fairness to have the plaintiff prejudiced by the imprudence of
the defendant in allowing this delay and the consequences it would produce: @
para. 75

[40]       
Finally, while liability is a triable issue, it is not obvious that the
examination for discovery produced new (or changed) evidence as to support the
proposed change in the pleadings. Nevertheless,  this question need not be
decided on this application. The overwhelming prejudice to the plaintiff
outweighs allowing the admission’s withdrawal even if a triable issue exists.

[41]       
With the dismissal of the defendant’s application, there is no purpose
served in determining the plaintiff’s application. Disclosure of the Discovery
Report was sought in order to respond to the defence application. Thus, the
appropriate result is the dismissal of the plaintiff’s application even though
it was not determined on the merits.

                      “C.
P. Bouck”                    

Master
C. P. Bouck