Weiss v. Koenig, 2010 BCSC 1292
In this motor vehicle injury case the office of the personal injury lawyer representing the injury claimant missed a time limit to respond to ICBC’s request to admit certain facts. The injury claimant says he suffered various injuries including bilateral impairment of his hearing . The injury claimant’s lawyer received a letter from ICBC which, on the last of its five pages, referred to an enclosed Notice to Admit, which asked the claimant to admit that the hearing loss was not due to the car accident. The lawyers legal secretary filed the Notice to Admit away and the time to respond passed. The injury claimant therefore brought the application seeking to withdraw the deemed admissions of fact.
Master Keighley found that the claimant should have the opportunity to have his credibility tested at trial with respect to his claim of hearing loss. As to ICBC’s claim of prejudice, where the only prejudice to a party seeking to rely on admissions is that of being deprived of relying on the admissions occasioned through the inadvertence of a lawyer, and where the evidence disclosed a fair issue to be tried, the interests of justice have been deemed to require that the applicant not be deprived of a trial on the merits: Can-Am Produce and Trading Ltd. v. Moradian, [1995] B.C.J. No. 2055 (BCCA). The interests of justice favoured the withdrawal of the admission and the court therefore withdrew the admissions. Posted by Mr. Renn A. Holness
Issue: Should a notice to admit an important fact be required to be sent separately to give the other side proper notice?
