Can a defendant withdraw an admission of liability in a motor vehicle action?

In Antipas v. Coroneos, [1988] O.J. No. 137 (Ont. H.C.), the court heard an appeal from an order refusing leave to a defendant to withdraw an admission of liability in a motor vehicle action. Justice Saunders considered what rule should apply: the rule that deals with the withdrawal of an admission in a pleading (Rules of Civil Procedure, Rule 51.05) or the rule that deals with amendment of pleadings (Rule 26.01). He concluded that the rule dealing with the withdrawal of admissions was more specific and therefore superseded the rule dealing with amendments of pleadings.

A similar issue was addressed in Forget v. Forget, [2001] O.J. No. 3691 (Ont. S.C.J.), but under the Family Law Rules. In that case, the applicant moved to amend the application to provide a different separation date. Justice Rogers concluded that the statement of a date for separation in the pleading was an admission of fact in contrast to the part of the pleading that sets out the requests for relief. As such, a request to change to the separation date should be addressed under Rule 22(5) of the Family Law Rules, the rule that deals with the withdrawal of admissions.

Justice Rogers reviewed the criteria set out in Antipas v. Coroneos for withdrawing an admission under the Rules of Civil Procedure. Those criteria are: (i) the proposed amendment raises a triable issue; (ii) the admission was inadvertent or resulted from wrong instructions; and (iii) the withdrawal will not result in prejudice that cannot be compensated for in costs. She considered whether the second criterion is the appropriate one under the Family Law Rules and slightly revised the criteria as follows at paragraph 17: (1) the proposed amendment is on a triable issue. (2) the admission was a mistake and the party offers a reasonable explanation for the change of position. (3) any prejudice caused by the withdrawal can be cured or compensated for in costs.