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.
 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.
 Clearly the admission is not a purely factual one - an admission of negligence and liability involves mixed fact and law.
 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.
 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.
 I am satisfied that there is no significant prejudice to the plaintiff here.
posted by Collette Parsons at 8:38 AM