Allowing appellant to withdraw admission would prejudice other injured parties

Ontario civil | Civil Practice and Procedure | Admissions | Withdrawal of admission

Appellant’s son was convicted of criminal negligence causing bodily harm and aggravated assault as result of his actions in deliberately ramming vehicle driven by plaintiff with truck. Passenger in plaintiff’s vehicle commenced action against drivers and owners of both vehicles and plaintiff sued his own insurer claiming relief in event parties legally responsible were uninsured or underinsured. Motion judge found appellant was actual owner of truck and based on agreement between parties that appellant’s owner would respond to claim if she was owner of truck and that because limits of policies were same, action against plaintiff’s insurer could be dismissed, he dismissed action against plaintiff’s insurer. After action was dismissed, appellant moved to withdraw her agreement to enable her to argue that s. 192(2) of Highway Traffic Act made her vicariously liable for negligent driving of her son, but not for intentional assault using vehicle. Motion judge dismissed appellant’s motion concluding that her son’s conviction for criminal negligence conclusively established he was negligent, and that appellant as owner was therefore liable pursuant to s. 192(2) of Act. Appellant appealed arguing that motion judge erred in finding son’s conviction for criminal negligence foreclosed argument that son’s actions were intentional and not negligent and that he applied wrong test. Appeal dismissed. Allowing appellant to withdraw admission would prejudice other injured parties as action against plaintiff’s insurer was dismissed based on her admission and therefore that policy was no longer available to respond to loss, and prejudice could not be remedied by order for costs. Interests of justice did not require that appellant be allowed to advance her proposed arguments.

Liu v. The Personal Insurance Company (2019), 2019 CarswellOnt 1745, 2019 ONCA 104, Doherty J.A., Janet Simmons J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 10606, 2017 ONSC 4232, P.W. Sutherland J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 380, 2018 ONSC 324, P.W. Sutherland J. (Ont. S.C.J.).

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