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Withdrawing an Admission

My brother lent my car to his friend while I was travelling, and now I’m being sued.  Will I have to pay for the damage caused by my brother’s friend?

In an application heard in Vancouver this week, Master Harper pronounced judgment on a motor vehicle case where the collision in question was caused by a driver who did not own the vehicle (Nagra v Cruz, 2016 BCSC 2469).  Both the driver (Mr. Cruz) and the owner (Mr. Liwag) were listed as defendants in the case, as is standard in motor vehicle cases.  In the response to civil claim prepared by counsel for the defendant, Mr. Liwag had admitted that Mr. Cruz was driving the vehicle with his permission.  Mr. Liwag now sought to withdraw that admission.

The actual facts surrounding the loan of the vehicle were in evidence – Mr. Liwag was in the Philippines at the time of the collision.  He had left his keys in his home, where he resided with his parents and siblings.  Mr. Liwag said he didn’t give anyone permission to use his vehicle while he was away.   Nonetheless, as siblings are wont to do, Mr. Liwag’s brother took the keys and used the car.  The brother then lent the vehicle to Mr. Cruz, a friend of his.  While Mr. Cruz was using the vehicle, he caused the subject collision.

The ICBC adjuster made some attempts to reach out to Mr. Liwag, but the letters sent apparently did not reach him (given that he was not in Canada at the time).  Mr. Liwag’s brother informed the adjuster that Mr. Liwag had given him permission to use the vehicle, but this was never confirmed with Mr. Liwag.  The adjuster then gave instructions to defence counsel regarding the response to civil claim, in which the admission of consent was made.  Mr. Liwag never discussed consent with the adjuster at any point, and never consulted with defence counsel or reviewed the response to civil claim.

Master Harper discussed the five factors to consider in deciding whether or not to exercise her discretion to grant leave to withdraw the admission:

[6]             The factors that should be considered by the court in determining what result is in the interests of justice are:

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.

Master Harper granted leave to Mr. Liwag to withdraw the admission of consent, in large part because the prejudice to Mr. Liwag in refusing leave could be significant, given the very real possibility that a judgment at trial would exceed his policy limits.  A mistake had been made by ICBC or defence counsel, held Master Harper, and Mr. Liwag ultimately should not have to pay the  price.

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