Case Summary by John W. Bilawich
Re: Rule 7-7(5)
Case: Surerus v. Leroux – 2010 BCSC 1344
Decision of Master Shaw dated September 23, 2010
Application by Defendant in MVA PI case to withdraw an admission of liability in the Statement of Defence.  Adjuster said they instructed defence lawyer to admit liability without turning their mind to negligence.  Ten months later defence counsel interviewed defendant who said his brakes failed just prior to the accident.  September 2009 defence lawyer wrote plaintiff lawyer advising he wanted to withdraw the admission of negligence.  Plaintiff lawyer said they would not consent to withdrawal of the admission.  April 2010 defence examined plaintiff for discovery.  Plaintiff acknowledged overhearing a faulty brake discussion between the defendant and police at the scene, observed police testing the brake pedal and saw it go to the floor and overheard the defendant saying he had been working on his brakes prior to accident.  Defendant argued the adjuster made a determination of liability without knowing all the facts and that there was a triable issue: whether faulty brakes were the reason for the accident. Plaintiff had expressly alleged that faulty brakes were a cause of the accident and said there was prejudice to the plaintiff if there was to be an inquiry into the mechanical status of the vehicle four years post accident.
Master Shaw applied the test in 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582 [whether in the circumstances of the case the interests of justice justify the withdrawal of the admission].  She concluded the interests of justice did not justify withdrawal of the admission in this case.  Factors she mentions specifically:
·         It had been more than four years since accident
·         Trial scheduled for April 11, 2011 – trial was not imminent so there was no risk of losing the date
·         Discoveries had been conducted
·         Defendant’s motion was not filed until May 28, 2010 despite fact that defence counsel raised the issue of withdrawing the admission in September 2009 – the delay in bringing the application, from the time of the accident to present, was a concern which could not be overcome
·         There was no evidence before the court regarding the current status of the vehicle, whether it was available for inspection
·         Plaintiff specifically pleaded the condition of the brakes and that should have alerted the adjuster and defence … even if the admission was inadvertent, there appeared to be an element of not paying attention to the pleadings
·         Withdrawing the admission at this point would be prejudicial to the plaintiff – plaintiff had acted to their detriment by relying on the admission