In Monks v. Mohammed, the Plaintiff was injured in a motor vehicle accident as a passenger. An ICBC claim was subsequently brought by the Plaintiff, and legal proceedings were eventually commenced. ICBC’S lawyer filed a Response to the Plaintiff’s Notice of Civil Claim, admitting liability.
Shortly after the Response was filed, ICBC’S lawyer attempted to contact counsel for the Plaintiff, indicating that the admission of liability “may be” in error, however counsel for the Plaintiff never responded. ICBC’S lawyer also later on attempted to obtain consent of counsel for the Plaintiff to amend the Response to withdraw the admission of liability.
An application was eventually made by ICBC’S lawyer, seeking leave to amend the Response, and plead inevitable accident.
In citing previous court decisions, the Court noted that the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits. ICBC’S lawyer argued that the triable issue was the defence of inevitable accident, which was based on the Defendant’s statement that she blacked out upon entering the intersection. It was also argued that the admission of liability was made in error.
Counsel for the Plaintiff argued that there was no evidence that the admission was made in error, including the fact that there was no Affidavit from the adjuster, who had completed the original suit report, stating that the admission was made in error. Counsel for the Plaintiff also argued that witness memories would be affected by the passage of time, thereby making it difficult for the Plaintiff to prove his case.
After factoring in all the circumstances, the Court would eventually determine that there would be no prejudice to the Plaintiff by withdrawing the admission of liability, and that there was a triable issue as to liability. As such, the Court granted the Defendant leave to amend the Response to plead inevitable accident.
 Rule 7-7(5) of the Supreme Court Civil Rules provides that an admission made in a pleading may not be withdrawn “except by consent or with leave of the court.” The order granting leave is a discretionary one. The overriding principle is whether, in the circumstances, the court is satisfied that it is in the interests of justice to allow the admission to be withdrawn. Admissions of fact are not to be set aside lightly. 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. In applying that test, the court is to take all the circumstances into account including:
- that the admission has been made inadvertently, hastily or without knowledge of the facts;
- that the fact admitted was not within the knowledge of the party making the admission;
- that the fact admitted is not true;
- that the fact admitted is one of mixed fact and law;
- that the withdrawal of the admission would not prejudice a party; and
- that there has been no delay in applying to withdraw the admission.
 Unlike Miller v. Norris, 2013 BCSC 552 (CanLII), the evidence does not support a conclusion that the defence of inevitable accident had been investigated and rejected by the handling adjuster as “not going to go anywhere”: Miller, paras. 9 and 35. In my view, the defence has made out that there is a triable issue as to liability.
 While the defendant delayed in bringing the application seeking leave to withdraw the admission, her counsel contacted plaintiff’s counsel immediately after receiving the letter of November 4, 2014, seeking consent to an amendment of the response. To date there has been little or no progress in the action and it is fair to conclude that the plaintiff is not prejudiced by the withdrawal other than by having to prove liability.