ICBC admits liability; argues they are not at fault for MVA in Court.

ICBC’s role as an insurer, like most insurance companies, is not to protect its clients but rather, limit expenditure thereby increasing profits; it is a business after all. This obligation can result in ICBC accepting liability for motor vehicle accidents (MVAs) at one point in litigation, but at other times, seeking to withdraw their admissions of liability. Essentially, circumstances of the case dictate liability.

However, when withdrawing their admission of fault, if plead in the Response to a plaintiff’s lawsuit, ICBC must appeal to the Court. In the recent case of Li v Zhili, 2021 BCSC 1434, this is exactly what happened. In this case, “[a]s of November 2018, [ICBC] was prepared to defend the action on the basis of a global admission of liability. The insurer subsequently changed its approach, and decided to globally deny liability. The admission of liability on behalf of [the defendant] was not a mistake of fact, but rather the result of a breakdown of communication between ICBC and defence counsel. ICBC and defence counsel then failed to bring their mistake to the attention of the plaintiff’s counsel in a timely manner”.

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The Court, due to the lack of prejudice to the Plaintiff, permitted ICBC to withdraw its admission of liability and the Plaintiff, to his detriment, is now forced to also prove who is at-fault for his or her injuries as well prove his damages. In reviewing the law, Master Elwood stated as follows:

[21]      Rule 7-7(5)(c) of the Supreme Court Civil Rules stipulates that a party is not entitled to withdraw an admission made in a pleading except by consent or with leave of the court.

[22]      The overarching question on an application for leave to withdraw an admission is whether there is a triable issue that should, in the interests of justice, be determined on its merits rather than disposed of by way of the admission: Century Services Inc. v. LeRoy, 2015 BCCA 120, at para. 15; Fontaine v. British Columbia (Official Administrator) (1996). 1996 CanLII 342 (BC CA), 22 B.C.L.R. (3d) 371 (C.A.), at para. 34.

[23]      In Sidhu v. Hothi, 2014 BCCA 510, Madam Justice Newbury framed the factors that should be considered in determining what result would be in the interests of justice, at para. 25:

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 a delay in the application to withdraw the admission and any reason offered for such delay.

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