IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130529

Docket: M127603

Registry:
New Westminster

Between:

Manjit Kaur Sidhu
and Harpreet Kaur Sidhu
by her Litigation Guardian Manjit Kaur Sidhu

Plaintiffs

And

Baljit
Kaur Hothi also known as Baljit Hothi and
Bhupinder Singh Hothi also known as Bhupinder Hothi

Defendants

Before:
Master Caldwell

In
Chambers

Reasons for Judgment

[1]            
This is an application by the defendants in a motor vehicle action to
withdraw an admission of liability and to amend their Response to Civil Claim.

[2]            
In submissions, counsel for the defendants clarified their position. The
defendants continue to admit liability for the collision but, in light of the
unusual evidence which they now possess, they wish to amend to deny that the
plaintiffs were in the “non-liable” vehicle at the time of the collision and to
allege that they suffered no injury or loss.

[3]            
The plaintiffs seek damages arising from a motor vehicle accident which
occurred on July 7, 2008 in Surrey. It is acknowledged that the vehicle driven
by the defendant Baljit Hothi was responsible for the collision.

[4]            
Following the collision, the other vehicle, a Jeep Cherokee, left the
scene. Two witnesses pursued and subsequently located the Cherokee a short
distance away; they returned to the collision scene and provided the police
with the location of the Cherokee. Ms. Hothi received a ticket for failure to
yield; Ms. Sidhu for failing to remain at the scene of an accident.

[5]            
By correspondence dated March 27, 2009, ICBC adjuster Wendy Thompson requested
incident details from the Surrey detachment of the RCMP; the police response
was dated March 27, 2009 and included, among other things, the names and phone
numbers of three witnesses, one being Yaseen Chaudhry.

[6]            
The Writ and Statement of Claim were filed on May 19, 2010; the Response
to Civil Claim was not filed until March 3, 2011 and admitted liability.

[7]            
In spite of having full knowledge of the witnesses, it appears that no
interviews of the witnesses were done until February 27, 2012 when the new ICBC
adjuster, Mike Saito, spoke to Yaseen Chaudhry. In his oral statement, which
was subsequently reduced to writing and signed, Mr. Chaudhry indicated that the
driver of the Cherokee was not a female but was in fact an “East Indian male
… darker skinned, and maybe in his late 20’s or 30’s”; he further stated that
there was no passenger in the Cherokee — the male driver was the sole occupant
of that vehicle. That statement was confirmed by Mr. Chaudhry in November 2012.

[8]            
By correspondence dated March 2, 2012, one day after a scheduled
mediation which was cancelled by the defence, counsel for the defendants
advised plaintiff’s counsel that he intended to apply to withdraw the admission
of liability due to information recently received from a witness.

[9]            
The defendants now seek, by application filed 11 months after that March 2012
correspondence, to amend their Response to deny that the plaintiff was driving
and that the infant plaintiff was a passenger in the Cherokee and to allege
that the Cherokee was being driven by an unknown male.

[10]        
Defence counsel indicated in submissions that his application does not
actually seek to withdraw an admission, rather he only applies to amend his
Response. I do not accept that as an accurate reflection of what is being
sought. This application is, regardless of attempts to characterize it
otherwise, an application to withdraw an admission; the legal test to be
applied is the more stringent test for such withdrawal rather than the lesser
test for simple amendment of pleadings.

[11]        
Withdrawal of an admission is dealt with by Rule 7-7(5) which
provides:

(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.

[12]        
Master Bouck, dealing with a similar application to withdraw admissions
in the case of Hurn v. McLellan, 2011 BCSC 447 outlined the law
applicable to such applications at paras. 28 – 33:

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. (4^th)
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.

[13]        
In the present case, it cannot be said that the admission was made
inadvertently or hastily. The file had clearly been in the hands of a
professional adjuster since shortly after the accident. The adjuster had
requested and received a report from the RCMP within months of the accident;
that report included the names and contact information for various witnesses
including Mr. Chaudhry. The writ was not filed until some 14 months after the
adjuster obtained the police report and even then it was a further nine months
before a Response was filed admitting liability.

[14]        
Even if the defendants did not have actual knowledge of the evidence of
Mr. Chaudhry when the admission was made, that information was available to
them and had been available to them for almost two full years prior to the
admission. Any ignorance of Mr. Chaudhry’s evidence arose from the defendant’s
decision not to seek out that evidence.

[15]        
There is no way to determine whether the admission is true or not. The
evidence does indicate however that the plaintiffs have proceeded on the basis
of the admission of liability and have spent considerable money addressing only
the medical/quantum aspects of their case. A withdrawal of liability at
this late stage will of necessity result in a complete reassessment of the case
and may well result in an adjournment of the trial.

[16]        
Evidence which might have been available to impeach the Chaudhry
statement may well have been lost due to the passage of time. Counsel agreed
that the vehicle is no longer available for forensic examination of the
seatbelt mechanisms to determine how many showed signs of collision stress or
stretching.

[17]        
I believe it to be significant that the fifth circumstance which is
listed to be taken into account according to the case of Hamilton v. Ahmed
(supra) is worded the way it is: “(e)     the withdrawal of the admission
would not prejudice a party”.

[18]        
I do not interpret that as requiring the plaintiffs to affirmatively
establish that they have suffered a specific prejudice; it rather places the
onus on the defendant to establish that there is no prejudice to the plaintiffs.
Far from presenting such evidence, counsel for the defendants admitted in
submissions that the plaintiffs would now be unable to obtain any evidence as
to the condition of the vehicle as the vehicle is no longer available. Even if
the vehicle was available for inspection and examination today, five years of
driving has intervened to make any current findings useless.

[19]        
Finally, it is clear that defence counsel was aware of the Chaudhry
statement in March of 2012, at which time they indicated their intention to
apply to withdraw the admission of liability; 11 months passed before such
application was filed. No explanation was provided for that inordinate delay. On
the face of the application there has clearly been delay in bringing the
application to withdraw the admission.

[20]        
Master Bouck in the Hurn decision cited the case of Sureus v.
Leroux, 2010 BCSC 1344 in finding that:

… 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.

[21]        
In all of the circumstances of this case and for the reasons noted above,
I am of the view that this is not an appropriate case to allow the withdrawal
of the admission of liability. The application fails to meet virtually all of
the tests laid out in the Hamilton v. Ahmed, [1999] B.C.J. No. 311 decision.

[22]        
The application for withdrawal of admission and for amendment of the
Response is dismissed. The plaintiffs will have their costs of the application
in any event of the cause.

“Master Caldwell”