Case Summary: Glover v. Leaky


    1. An admission of liability in an action is not a formal admission binding the party making it in a subsequent action relating to the same accident, but is only evidence in the second action to be attributed such weight as the Court decides. Thus, it is not necessarily an abuse of process for the defendant who admits liability in one action to deny it in another one relating to the same accident.

    Glover v. Leaky, 2018 BCCA 56, per Willcock, J.A. [4271]


    The Plaintiff Glover sued her husband Leaky for a motor vehicle accident where she was a passenger in a vehicle owned jointly by both of them but being driven by Leaky. Another passenger in the vehicle, Yeomans had sued both in a separate action where Glover and Leaky were defended jointly by counsel appointed by their insurer, ICBC.

    In the Glover action, Leaky denied liability and successfully sought a jury trial.

    Partway through the jury trial, Glover's counsel applied to have the Defendant Leaky's denial of liability in his Statement of Defence struck on the basis of abuse of process. She relied on the fact that in the Yeomans action, ICBC counsel defending both Glover and Leaky had admitted Leaky's negligence in his pleadings. The Yeomans action had settled. In the Glover action, the Plaintiff argued that it would be an abuse of process to allow Leaky to contest liability when he had admitted liability in his pleadings in another action involving the same accident. Glover's counsel had only recently discovered the admission in the Yeomans action partway through the Glover trial.

    Glover's counsel suggested that the trial judge defer judgment on the application until the conclusion of the trial and Leaky's counsel agreed. The Court decided that if the verdict came in finding no liability against Leaky she would postpone entering judgment until after deciding the abuse of process issue. If the verdict found liability against Leaky, she would enter judgment. The trial continued. Plaintiff's counsel did not put Leaky's admission in the Yeomans action to him.

    The jury found no liability against Leaky. The Court found that the Plaintiff's counsel had allowed the trial to continue without confronting Leaky about the admission due to a misunderstanding of what had been agreed to. The trial judge found that Leaky's denial of liability was an abuse of process in light of his admission in pleadings in the Yeomans action and, further concluded that the Plaintiff had not had a fair trial because her counsel had not confronted Leaky with it. She declared a mistrial.

    The Defenant Leaky appealed, arguing that his denial of liability in the Glover action was...

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