J. & E. Backhoe Ltd. v. Phillips

J. & E. Backhoe Ltd. v. Phillips

The defendants' responses did not comply with Rule 31(2) and therefore produced deemed admissions, but applying the interests of justice (Drake; Hamilton) the court granted leave to withdraw those admissions because the matters should be determined on the merits, some admissions may be untrue or mixed fact and law, and no substantial prejudice to the plaintiff would result; accordingly the court ordered a proper response, rescheduled the Rule 18A hearing, set affidavit exchange deadlines, awarded costs of $675, and ordered funds paid out to plaintiff's counsel trust less costs.

Citation
2008 BCSC 1596
Parties
Plaintiff: J. & E. Backhoe Ltd.; Defendant: Lynda Jane Phillips; Defendant: Duncan Phillips
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 November 2008
Procedural Posture
Civil Proceeding Construction Lien; Rule 18 a Application / Interlocutory Application Re Notice to Admit and Withdrawal of Deemed Admissions
Outcome
Deemed admissions found to have arisen but defendants granted leave to withdraw; interlocutory case management and costs orders made
Legal Topics
Notice to Admit, Deemed Admissions, Withdrawal of Admissions, Rules of Court (rule 31, Rule 18 A), Costs, Payment Out of Court
Source Language
English
Civil Procedure Evidence Construction Lien Notice to Admit Deemed Admissions Withdrawal of Admissions Rules of Court (rule 31, Rule 18 A) Costs +1 more

Case Brief

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Parties

J. & E. Backhoe Ltd.

Plaintiff

Lynda Jane Phillips

Defendant

Duncan Phillips

Defendant

Procedural Posture

Civil Proceeding Construction Lien; Rule 18 a Application / Interlocutory Application Re Notice to Admit and Withdrawal of Deemed Admissions

Legal Issues

  1. 1 Whether the defendants' response complied with Rule 31 and whether deemed admissions arose
  2. 2 Whether deemed admissions should be withdrawn in the interests of justice
  3. 3 Whether plaintiff would be prejudiced by withdrawal and delay

Ratio Decidendi

The defendants' responses did not comply with Rule 31(2) and therefore produced deemed admissions, but applying the interests of justice (Drake; Hamilton) the court granted leave to withdraw those admissions because the matters should be determined on the merits, some admissions may be untrue or mixed fact and law, and no substantial prejudice to the plaintiff would result; accordingly the court ordered a proper response, rescheduled the Rule 18A hearing, set affidavit exchange deadlines, awarded costs of $675, and ordered funds paid out to plaintiff's counsel trust less costs.

Court Disposition

Deemed admissions found to have arisen but defendants granted leave to withdraw; interlocutory case management and costs orders made

Orders

  • Defendants to deliver a Rule 31(2) compliant response to the notice to admit no later than November 14, 2008.
  • Plaintiff to set a new Rule 18A hearing date no later than February 1, 2009; date to be fixed by plaintiff no later than November 4, 2008 and communicated to defendants by November 5, 2008.