Category: Withdrawing Admissions

Court Allows Defendant To Amend Response By Withdrawing Admission Of Liability And Pleading Inevitable Accident

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.

 

[12]     Rule 7-7(5) of the Supreme Court Civil Rules provides that an admission made in a pleading may not be withdrawn “except by consent or with leave of the court.”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in the circumstances, the court is satisfied that it is in the interests of justice to allow the admission to be withdrawn.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:

 

  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; and
  6.          that there has been no delay in applying to withdraw the admission.
  7.  

[16]      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.

 

[17]   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.

Court Of Appeal Allows Admission Of Fault To Be Withdrawn

While for the most part in ICBC claims, an admission of liability by the Defendant or ICBC’S lawyer will remain intact throughout the course of the ICBC claim, occasionally a situation will arise where the Defendant or ICBC’S lawyer attempts to withdraw the earlier admission. Such applications will usually be rejected by the Court, on the grounds that allowing the withdrawal will be prejudicial to the Plaintiff’s interests. Plaintiff’s counsel and ICBC’S lawyer also at times wish to withdraw deemed admissions.

 

Rule 7-7(5) of the British Columbia Supreme Court Civil Rules deals with the issue of withdrawing formal admissions made in pleadings.

 

In Sidhu v. Hothi, the Plaintiffs alleged to have been in a motor vehicle accident caused by the Defendant, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. ICBC’S lawyer admitted fault on behalf of the Defendant. However, a witness later surfaced who suggested that the Plaintiffs may not even have been in the vehicle to begin with. ICBC’S lawyer sought to withdraw the earlier admission of fault, however counsel for the Plaintiff refused, arguing that it was too late for this to occur. The Master who originally heard the matter refused to allow ICBC’S lawyer to withdraw the original admission of fault, however a chambers judge allowed the appeal. The Plaintiff’s appeal was dismissed by the British Columbia Court of Appeal, who found that the withdrawal was appropriate, commenting that :

 

[25] Turning, then, to what I regard as the real issue in this case – whether the chambers judge erred in concluding that most of the Hamilton factors weighed in favour of the defendants – I would suggest it would be preferable to frame items 3‑8 of the Hamilton test not as conditions that must be met, but as factors that should be considered in determining what result is in the interests of justice. Thus I would reframe items 3‑8 as follows:

 

(a) whether the admission was made inadvertently, hastily, or without knowledge of the facts;

(b) whether the “fact” admitted was or was not within the knowledge of the party making the admission;

(c) where the admission is one of fact, whether it is or may be untrue;

(d) whether and to what extent the withdrawal of the admission would prejudice a party; and

(e) whether there has been delay in the application to withdraw the admission and any reason offered for such delay.

 

I have omitted item 6 of the original list (that the fact admitted be one of mixed fact and law), since in most cases, including Hamilton itself, this has been held to be irrelevant provided a triable issue is raised (see also Nesbitt (B.C.S.C.) at para. 56.)

 

[26] The decision as to what is in the interests of justice involves a considerable degree of discretion, and as noted in Goundar v. Nguyen 2013 BCCA 251, this court should generally not interfere with such a decision unless the judge erred in principle. In my view, the chambers judge correctly weighed the “delay” factor against the fact that the admission was made without knowledge of the evidence; that the insurer’s failure to appreciate the significance of Mr. Hothi’s witness statement was a simple oversight; that witnesses to the accident are still available; and most importantly, that if the application were dismissed, the plaintiffs might be perpetrating a fraud on the defendants and on the court. In my opinion, this possibility is one that would be very difficult to countenance. Further, allowing the application will ensure that the plaintiffs’ claim will be heard on the merits – an overarching objective referred to in Rule 1-3 of the new Supreme Court Civil Rules.

Court Allows Application To Withdraw Admission Of Liability

While for the most part in ICBC claims, an admission of liability by the Defendant or ICBC’S lawyer will remain intact throughout the course of the ICBC claim, occasionally a situation will arise where the Defendant or ICBC’S lawyer attempts to withdraw the earlier admission. Such applications will usually be rejected by the Court, on the grounds that allowing the withdrawal will be prejudicial to the Plaintiff’s interests. Plaintiff’s counsel and ICBC’S lawyer also at times wish to withdraw deemed admissions.

 

Rule 7-7(5) of the British Columbia Supreme Court Civil Rules deals with the issue of withdrawing formal admissions made in pleadings.

 

In Goundar v. Nguyen, the Plaintiff was involved in a motor vehicle accident with two vehicles, and brought an ICBC claim for pain and suffering, and many other heads of damages. The Plaintiff named two Defendants. Prior to trial, ICBC’S lawyer inadvertently admitted liability on behalf of one of the Defendants, in exchange for a discontinuance against the other Defendant. An agreement was entered into to that effect. An application was then brought to set aside the agreement, which the trial justice granted. The matter was appealed to the British Columbia Court of Appeal on the basis that the judge did not have the jurisdiction to set aside the agreement. The Court of Appeal dismissed the appeal, commenting that :

 

[26] I have already concluded that Rule 7-7(5) applies to withdrawing an admission even if it arose from an agreement, and determined that the agreement in issue in this case does not purport to attempt to oust the application of the Supreme Court Civil Rules and, in particular, the rule governing the withdrawal of an admission made in a pleading. The fact of the agreement and the conduct of the parties relying on it is a factor that can, to the extent necessary, be taken into account in the balancing of prejudice as part of answering the ultimate question whether the interests of justice require permitting the admission to be withdrawn.

 

[27] In the result, I am satisfied that the chambers judge adopted the correct test in deciding the issue before her.

 

[28] Allowing the withdrawal of an admission is a discretionary matter. Deference is owed to the chambers judge, unless the judge erred in principle in the exercise of her discretion. Here I see no such error. The judge found there to be a triable issue. She concluded that the admission had been made inadvertently. She balanced any prejudice arising from the proposed withdrawal of the admission. She addressed the extent to which a prejudice could be compensated by costs. I would not interfere with the exercise of the chambers judge’s discretion.

Court Refuses Application By ICBC To Withdraw Admission Of Liability, And Plead “Inevitable Accident”

In Miller v. Norris, the Plaintiff was injured in a motor vehicle accident when struck by a falling light pole, which had been struck by the Defendant moments after suffering a heart attack. The Plaintiff brought an ICBC claim for injuries sustained in the collision, seeking damages for pain and suffering, as well as several other heads of damages. ICBC’S lawyer originally admitted liability on behalf of the Defendant. As the matter progressed, ICBC’S lawyer sought to withdraw the earlier admission of fault, and plead the defence of  “inevitable accident”. The Court rejected the application of ICBC’S lawyer, stating that the original admission was not made hastily, or with no knowledge of the facts, and no new evidence warranted the granting of the application.

 

[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.

 

[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.

 

[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.

 

[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.

 

[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs.

 

[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories.

 

Court Allows Defendant To Withdraw Liability Admission

In Goundar v. Nguyen et al., the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. ICBC’S lawyer “inadvertently” admitted liability on behalf of the Defendant, and later wished to amend this. The Plaintiff would not consent, so ICBC’S lawyer brought an application. The Court allowed ICBC’S lawyer to amend the Response, and in so doing allowed ICBC’S lawyer to change it’s position on liability.

 

[36]         The cases to which I was referred dealing with withdrawal of admissions treat admissions made by inadvertence with caution.  Many of the cases deal with deemed admissions through failure to respond to a Notice to Admit.  However, the considerations remain the same.  The court will consider if the admission was made inadvertently, if it is in the interests of justice to allow the issue to be resolved by a trial, and if there will be no prejudice to the party which cannot be compensated by costs.  If satisfied of those factors, leave to withdraw such an admission will generally be granted. (Abacus Cities Ltd. v. Port Moody [1980] B.C.J. No. 1749 and cases cited therein). 

 

[37]         The balancing of the interests of justice requires the applicant to show that there is a triable issue in respect of the admission.  The chambers judge must not make a final determination, but will simply determine if there is an issue worthy of being tried.  Prejudice resulting only from the benefit of relying on the admission occasioned by the inadvertence is not of significance (Can-Am, supra).

 

[42]         I am satisfied there is a triable issue on liability, based on the information put before me as to Goundar’s allegations, potential evidence from Maharajh, and Nguyen’s ticket on the one hand, and Nguyen’s and Stewart’s evidence on the other.  As well, Nguyen has her own action which is still outstanding.  There is a conflict in the evidence about the collision, which should be resolved by a trial.

 

[43]         Although the plaintiff says the relevant admission was made deliberately and with no new facts available, that is not borne out by the affidavit material.  The lawyer has set out clearly how she came to make this admission in the face of her own assessment of the case and contrary instructions.  She admits she did not remember her instructions had changed and she did not conduct a review of the file before following a prompt from her paralegal to follow up on ICBC’s original letter.  The initial suggestion by ICBC to canvass plaintiff’s counsel regarding the proposal was made without the benefit of Mr. Stewart’s evidence, and the relevant instructions not to admit liability were in place at the time the lawyer amended the Response to admit liability.  I am satisfied that the defendant has demonstrated that the admission was made inadvertently.

 

[44]         As for the balancing of prejudice, nothing irrevocable has been done that cannot be compensated for in costs.  The interests of justice require that this unfortunate situation be set back on track rather than allow the Goundar action to proceed on an untested and possibly erroneous foundation which has come about as a result of a mistake.

 

Application By ICBC To Withdraw Admission Of Fault Denied

In Hurn v. McLellan, the Plaintiff commenced litigation, and ICBC’S lawyer admitted fault in their Statement of Defence. As the trial neared, however, the lawyer for ICBC wished to change the Defendant’s position on liability, and sought to withdraw their previous admission as to fault. The Court dismissed the application, ruling that it would be prejudicial to the Plaintiff.

 

[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]        …… 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.

 

[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.

 

[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.

 

Court Refuses To Allow Plaintiff To Withdraw Admission Regarding No Loss Of Income Claim

In Davie v. Wilson, the Plaintiff was involved in multiple motor vehicle accidents, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. With respect to one of the accidents, the Plaintiff did not plead a loss of income. However, at Examination for Discovery, the Plaintiff stated that he believed he did not earn as much income as he could have after the accident. As a result of this, ICBC’S lawyer made a request for further information and documentation with respect to the loss of income issue. The Plaintiff would not produce any more information and documentation. ICBC’S lawyer took the view that this was because the Plaintiff wished to avoid any further Discovery of him with regards to the loss of income issue. The Plaintiff wished to withdraw the admission that there would be no loss of income claim, however the Court refused to exercise its’ discretion to do so :

 

[3]               The law with respect to the exercise of the court’s discretion under Rule 31(5) (as it then was) respecting the withdrawal of an admission is appropriately summarized — both counsel appear to have acknowledged that this accurately reflects the law — in British Columbia Practice, third edition, volume 2, at page 31-8:

If an applicant can establish that the 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 the admission in the pleadings will be decided on a simple balance of prejudice and considerations of the interests of justice.  Where, however, none of these conditions are met, the balance of prejudice must be much more substantially in favour of the applicant before the court will conclude that the interests of justice warrant the withdrawal of the admission.

[7]               I note that the application is now effectively five years after the admission was made.  Such a delay, in my view, results in a presumption of prejudice to the defendants, and in this case that presumption is underlined by the subsequent circumstances.  Those are that in respect of the other subsequent actions to which I have referred, there has been what I would describe as intermittent and non-timely disclosure of income-related evidence from the plaintiff in the discovery process.  In fact, the first disclosure of such evidence appears to have been in April of 2007.

[8]               Another factor is that some relevant records are now no longer available.  Banking records prior to 1998 are no longer kept by the Hong Kong Shanghai Bank.  The plaintiff has deposed that his house was ransacked in 2004 and certain of his records have disappeared as a result.  So those records are no longer recoverable.

[9]               It also seems to me that there is and has been prejudice to the defendants in that they have been unable to properly defend this action in a way that would have been appropriate had the admission not been made.  That is by considering their position and making an appropriate offer under Rule 37.  Certainly the delay has made it impossible for them to give appropriate consideration to any amount which might be offered with respect to an income loss claim.  An attempt by the defendants now to pursue an investigation with respect to income loss, some 12 to 13 years after the initial accident took place, so as to establish a pattern of income prior to the accident is unlikely to be fruitful.

[10]           Therefore, in the absence of any satisfactory explanation provided by the plaintiff for the delay and in light of both the presumed and evident prejudice to the defendants in permitting the withdrawal of the admission, I dismiss the application.

 

 

 

Court Allows Plaintiff To Withdraw Deemed Admission

A Notice to Admit is a legal document in which one party attempts to have the other party admit to certain facts prior to trial, with such admissions later becoming binding. If the party serving the Notice to Admit does not receive a response from the other party within a certain period of time, then it is deemed that the party has made the admissions, even if they have not responded to them.

 

In Piso v. Thompson, the lawyer for the Plaintiff failed to respond within time to the Notice to Admit served by ICBC’S lawyer. The lawyer for ICBC then brought an application for summary judgment, which was followed by an application from Plaintiff’s counsel to withdraw the deemed admissions, which was opposed by ICBC’S lawyer. The Court granted the Plaintiff’s application to have the deemed admissions withdrawn.

 

[8]               Plaintiff’s counsel, upon receiving the Notice to Admit, put it in the file and forgot about it until he was served with notice of a summary trial application by the defendants seeking judgment on the basis of the deemed admissions.

 

[9]               Plaintiff’s counsel simply dropped the ball. He never sent the Notice to Admit to the plaintiff and never sought instructions for a response.

 

[10]           There is little doubt as to what the response would have been had the plaintiff seen the Notice. He has sworn an affidavit stating that he never knew of the Notice but that had he, he would have admitted being in the accident but denied the other three assertions.

 

[11]           The Notice to Admit is available in our Rule 7-7 to increase efficiency in the conduct of cases and to deal with matters that are not contentious and should be admitted. The rule in fact provides that a party’s failure to admit a fact or document which should be admitted may be punished in costs.

 

[12]           Silence on the part of the party receiving such a notice results in a deemed admission of the assertion or document contained in the Notice. Rule 7-7(5) provides that a party is not entitled to withdraw a deemed admission without leave of the court.

 

[13]         Both counsel are in basic agreement that the tests to be applied in applications such as this one are:

 

1.       Was the admission made inadvertently or hastily?

2.       Has there been a delay in bringing the application to withdraw the admission?

3.       Is there an issue worthy of being tried?

 

[14]         Plaintiff’s counsel submits that all of the requirements are met in this case. She submits further that there is substantial prejudice to the plaintiff if the admissions cannot be withdrawn, that there is little if any prejudice to the defendants and that any prejudice to the defendants can be accommodated by an appropriate costs order and, if necessary, the adjournment of the trial.

 

[20]         Rule 7-7 provides a mechanism to streamline and make more efficient the litigation process. It rewards efficiency and encourages a focus on issues which matter and which are truly in dispute. It provides penalties and disincentives for failure to admit that which should properly be admitted by way of cost sanctions. It certainly provides for much more extreme outcomes in appropriate circumstances but it also provides for judicial discretion in excusing or relieving from such extreme outcomes in appropriate circumstances.

 

[21]         In my respectful view Rule 7-7 does not, nor was it intended to, create a trap or add an inescapable obstacle to ensnare or trip up sloppy or inattentive counsel to the detriment of the parties to the litigation.

 

[22]         The current Rule 1-3(a) continues the long-standing object of the rules:

 

The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

 

[23]         There is no question in my mind that the failure in this case was a sloppy, inadvertent and possibly even negligent failure on the part of former counsel for the plaintiff. I am satisfied that the plaintiff himself cannot be faulted in any way for the oversight; he had neither actual notice of the document in question from his lawyer nor an opportunity to provide a reasoned and considered response.

 

[24]         The refusal of leave to withdraw these admissions will deny the plaintiff his opportunity to have his claim heard on the merits. The argument that the plaintiff can have his relief by way of a professional negligence claim against his former counsel fails to recognize the further delay and expense of such a claim. In the context of proportionality such an option does not seem appropriate from a financial or court resource prospective.

 

[25]         In my view this is precisely the type of situation which warrants an order allowing the withdrawal of a deemed admission while providing for the other party in costs and other accommodations.

 

[26]         The plaintiff is granted leave to withdraw the admissions ……