Admissions and Notices to Admit are covered by rule 7-7 of the Rules of Court. A Notice to Admit is a very powerful and useful tool in civil litigation.
Rule 7-7(1) relates to Notices to Admit and states as follows:
1) in an action which a response to civil claim has been filed, a party of record may, by service of a notice to admit in form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of the documents specified in the notice.
2) Unless the court otherwise orders, the truth of a fact or the authenticity of the documents specified in the notice to admit, is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement that
a) Specifically denies the truth of the fact of the authenticity of the document;
b) sets out in detail the reasons why the party cannot make the admission or,
c) states that the refusal to admit the truth of the factor the authenticity of the document is made in the grounds of privilege or relevancy or that the request is otherwise improper, and sets out in detail the reasons for the refusal.
Rule 7-7(5) deals with the withdrawal of an admission:
5) a party is not entitled to withdraw
a) An admission made in response to a notice to admit,
b) a deemed admission under several(2), or
c) an admission made in a pleading, petitioner response to petition
except by consent or with leave of the court
6) an application for judgment or any other application may be made to the court, using as evidence
a) admissions of the truth of a fact or the authenticity of a document made
1) in an affidavit or pleading filed by a party
2) in an examination for discovery of a party or person examined for discovery on behalf of a party, or
3) in response to a notice to admit, or
admissions of the truth of a factor the authenticity of a document deemed to be made under several(2)
The principles to be drawn from the authorities that govern an application to withdraw an admission of fact are set out in Hamilton v Ahmed (1999) 28 CPC (4th) 139 BCSC 11:
1. That 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 admission of fact;
2. that in applying that test, all the circumstances, should be taken into account, including the following:
3. that the admission has been made inadvertently, hastily, or without knowledge of the facts;
4. that the fact admitted was not within the knowledge of the party making the admission
5. that the fact admitted is not true
6. that the fact admitted is one of mixed fact and law
7. that the withdrawal of the admission would not prejudice a party
8. that there has been no delay in applying to withdraw the admission.
Admissions of fact are not lightly set aside.
The Hamilton case was followed by the BC Court of Appeal in Munster &Sons Developments Ltd v Shaw 2005 BCCA 564.
