Mark B. Harrington

The plaintiff appealed an order of a Master granting a defendant leave to withdraw an admission in a statement of defence that a taxi driver was an employee of the taxi company.

The court applied the three‑part test for withdrawal of admissions under rule 51.05 of the Rules of Civil Procedure requiring a triable issue, inadvertence, and absence of non‑compensable prejudice.

The court held the admission was inadvertent and that the withdrawal would not cause prejudice because the plaintiff could still pursue liability against the taxi company and explore the nature of the relationship through discovery.

The potential loss of access to higher insurance limits did not constitute legal prejudice.

The appeal was dismissed.

The appellant challenged the dismissal of an action on a livestock mortality insurance policy after a racehorse died from bismuth poisoning.

The Court of Appeal held that, once the trial judge found the malicious or intentional act exclusion inapplicable to the insured and his bailee, the poisoning constituted an accident as between the parties to the policy.

The court further held that the exclusion for administration of drugs, medication or inoculation applies to substances given for a beneficial medicinal purpose, not a lethal substance forced into the animal to injure or destroy it.

The insurer failed to prove the poison was given for medicinal purposes.

The appeal was allowed and judgment was entered for the policy amount plus prejudgment interest.