IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141027

Docket: M136890

Registry:
Vancouver

Between:

Amarjit Finch

Plaintiff

And

John Anderson and

Coast Mountain Bus
Company Ltd.

Defendants

Before:
Master Muir

Reasons for Judgment

[1]            
This is an application by the defendants to withdraw the admission of
negligence and liability made in their response to civil claim filed December 18,
2013.

[2]            
The action arises from a motor vehicle accident that occurred on March 27,
2013. A bus operated by the defendant, Coast Mountain Bus Company Ltd. (“Coast
Mountain”) and driven by the defendant, Mr. Anderson, rear-ended the
plaintiff’s vehicle, which was stopped in the bus lane on Highway 99 in Surrey,
B.C.

[3]            
Almost immediately following the accident the plaintiff made a report to
the Insurance Corporation of B.C. The plaintiff’s statement at the time was
that she was travelling west on Highway 99 at King George Boulevard when her
car engine died. She pulled into the far right lane and put her hazard lights
on.

[4]            
On April 8, 2013 she made a statement regarding the accident
circumstances, again saying the accident was on Highway 99 at or near the King
George Highway overpass.

[5]            
In his statement made the day of the accident Mr. Anderson puts the
accident further north on the highway. He says the plaintiff was stopped after
the Serpentine River Bridge on a curve in the highway and that her vehicle was
obscured to him by traffic and the curve of the road. When he saw the plaintiff’s
vehicle, Mr. Anderson was unable to change lanes due to traffic in the
lane to the left of him and uneven gravel and a ditch to the right. He applied
the bus brakes fully but was unable to stop before hitting the plaintiff’s vehicle.

[6]            
The Transit Supervisor’s report of the same day says that the driver had
nowhere to go as there was a large delivery truck to the left of the bus and
the ditch on the right.

[7]            
The accident was investigated by Coast Mountain, apparently including
revisiting the scene and taking video of the area.

[8]            
The investigation File Log Summary contains notes questioning why Mr. Anderson
allowed the “truck to block him in contrary to what they are taught.”  And
concludes: “By allowing this to happen he left himself no out or exit in the
event of an emergency. … Anderson should have backed off and let the truck go
ahead of him. He did not do that.”

[9]            
An Incident Analysis report dated May 3, 2013 concluded that the
accident was preventable, as contrary to Coast Mountain’s Training Department
instructions, Mr. Anderson had permitted the large vehicle to block his
view ahead. They determined that he should have distanced himself from this
vehicle to allow a full field of view.

[10]        
Apparently, as a result, the admission of liability was made.

[11]        
Examinations for discovery were held of the plaintiff and Mr. Anderson
on August 26, 2014.

[12]        
At those discoveries, the defendants say certain facts were learned that
were not known when the admission of liability was made. Including:

a)    Although the
plaintiff has consistently stated that her hazard lights were on, Mr. Anderson
denies having seen them;

b)    The two differed
by perhaps 2 kilometers as to the location of the accident; and

c)     The
plaintiff “was in her car while it was stopped in the bus lane for a
significant amount of time prior to the Accident.”

[13]        
As to the last point, her evidence was that the accident occurred
several minutes after she stopped. She said she tried to start the car several
times and at the time of the collision was trying to call her son to come and
pick her up.

[14]        
After the collision the plaintiff tried shifting the transmission to
neutral and was able to start her car and drive away.

[15]        
The defendants submit that this evidence raises questions about what the
plaintiff was doing on the side of the highway. The implication being that her
vehicle was not really disabled and she had perhaps stopped to make or take a
phone call.

[16]        
The defendants therefore argue that the plaintiff was in contravention
of s. 187 of the Motor Vehicle Act, RSBC 1996, c. 318, which
provides:

Where parking prohibited

187 (1) Subject to subsection (3), if
outside of a business or residence district it is practicable to stop, park or
leave a vehicle off the roadway, a person must not stop, park or leave the
vehicle either unattended or attended on the roadway.

(2) Subject
to subsection (3), a person must not park a vehicle so as to obstruct the free
passage of traffic on the highway.

(3) Subsections (1) and (2) do not
apply when a vehicle is so disabled that it is not practicable to avoid
stopping and temporarily leaving it on a highway.

[17]        
They also point to decisions in which the operator of a vehicle stopped
on a highway was considered to be negligent, e.g. Hart v. Jacobsen, 2014
BCSC 704 and Skinner v. Guo, 2010 BCCA 321.

[18]        
A failure to pull fully off the highway and engage hazard lights in this
circumstance could contribute to a finding of negligence.

[19]        
An admission in a pleading cannot be withdrawn other than by consent or
with leave of the court. See Supreme Court Civil Rules, B.C. Reg.
168/2009, Rule 7-7(5).

[20]        
The applicable test was not disputed. It was recently set out by Mr. Justice
Kent in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104, as
follows:

[27] With respect to applications under Rule 7–7(5)(c), the leave to
withdraw an admission made in a pleading, the principles to be applied and the
factors to be considered have been summarized and endorsed by the Court of
Appeal in Munster & Sons Development Ltd. v. Shaw, 2005 BCCA 564 (CanLII)
(at para. 10) as follows:

1. 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.

2. In applying that test, all the circumstances should be
taken into account including the following:

a. the
admission has been made inadvertently, hastily, or without knowledge of the
facts.

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.

[21]        
This test has been held to apply to the withdrawal of an admission of
liability in a response to civil claim in Sidhu v. Hothi, 2013 BCSC
1753.

[22]        
Here whether the plaintiff was negligent is a triable issue. The
admission, although not inadvertent, appears to have been made considering only
the actions of the defendant driver and not the potential negligence of the
plaintiff and without full knowledge of the facts. Although slim, there were
facts raised on the examinations for discovery that highlighted the potential
for such negligence.

[23]        
Clearly the admission is not a purely factual one – an admission of negligence
and liability involves mixed fact and law.

[24]        
As to prejudice, the plaintiff suggested that she has been deprived of
the ability to fully investigate the circumstances of the accident and that she
would have done so promptly had she known liability would be disputed.

[25]        
There were four independent witnesses to the accident that were
identified by the defendant driver. Since the hearing of this application,
I have been advised that three of those witnesses were in fact contacted
by counsel for the plaintiff prior to this application. Although their memories
may have faded, there is no indication that the plaintiff’s ability to
investigate this matter has been impaired.

[26]        
I am satisfied that there is no significant prejudice to the plaintiff
here.

[27]        
It is only about 18 months since the accident. The action was started
promptly and this application was made within a month of the examinations for
discovery. Delay is not a significant factor in my view.

[28]        
In all of the circumstances, I am satisfied that it is in the
interests of justice to allow the admission of negligence and liability to be
withdrawn. It is preferable that there be a full investigation of the merits of
this case.

[29]        
As a result, the application is allowed with costs to the defendant in
the cause.

____________ “Master
Muir”_____________
Master Muir