ICBC committed an “abuse of process”.
On August 31, 2016, a judge of the BC Supreme Court criticized a long-standing ICBC tactic and declared a mistrial. Madam Justice Gropper found that is is an abuse of process for a defendant sued by multiple parties from a single motor vehicle accident to admit liability in one lawsuit but deny in the other “where there are no facts to distinguish the two”.
In Glover v. Leakey, 2016 BCSC 1624, the defendant was involved in an accident which injured two passengers. One passenger sued, liability was admitted by ICBC, and the case settled. The second passenger sued and liability was denied. During a jury trial of the second passenger’s claim the plaintiff discovered the inconsistent pleadings and asked for a finding of liability.
Unfortunately the lawsuit proceeded to verdict and the jury found the defendant was “not negligent”. Before the order was entered the Court considered the entire set of circumstances and found that ICBC’s denial of liability was an abuse of process, declared a mistrial, and granted judgement for liability in favour of the plaintiff. In reaching this result Madam Justice Gropper provided the following reasons:
[67] In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…
[93] The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.
[94] I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:
1. A declaration of mistrial means that the matter will proceed to a new trial.
2. I grant judgment on the liability issue in favour of the plaintiff.
3. The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.
[95] Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.
