Now the applicants seek an order that would have the effect of withdrawing their admission that there is a right of way – precisely the same right of way that the applicants admitted existed, and upon which this court and the Court of Appeal has already rendered a decision. Should this court exercise its discretion to allow for such an amendment in the face of these facts?The parties to the application had been parties to three previous actions, one of which proceeded to trial and then an appeal. Justice Edwards noted that, "there can be no doubt then that in all three actions the applicants have accepted and asserted the existence of the right of way."
In spite of that, the applicant owners now argued that, even though a right of way was created in 1974, the chain of title was broken such that the right of way was not validly transferred to the current owners of the "dominant tenement" (i.e. the land benefitting from the right of way).
In deciding the issue Justice Edwards stated, "An admission made in a pleading or an affidavit is something to be relied upon not only by the opposite party but by the court. An admission may therefore only be withdrawn in very limited circumstances." Whether to allow an admission to be withdrawn is a matter of discretion for the Court; in this case, Justice Edwards ruled that the admission could not be withdrawn. Among the reasons given for this decision was that, "it would be contrary to public policy to allow a party now to come before this court to withdraw an admission that has been made in three separate actions, one of which has been disposed of by settlement and the other one of which has been adjudicated upon by McIssac J."
Justice Edwards continued:
Litigants are entitled to assume that once there has been a decision of this court, particularly one which has proceeded so far as the Court of Appeal, that such a decision is final and that the facts upon which that decision is based are also deemed to be final. Apart from the question as to whether or not there is prejudice, which in my opinion there clearly is, public policy dictates that the withdrawal of the admission now sought by the applicants should not be granted. The applicants’ motion is therefore dismissed.Read the decision at: Pagliuca et al. v. Paolini Supermarket Limited.