http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc359/2016bcsc359.pdf
The Supreme Court of British Columbia recently found ICBC liable for malicious prosecution. $350,000 in punitive damages were awarded against ICBC. Additionally, $30,000 plus an amount for legal fees was awarded against ICBC and their investigator Mr. Gould.
The entire matter arose from a motor vehicle accident, which occurred on January 31, 2000. Mrs. Arsenovski, who at the time was in her late 50s, had just moved to Canada from, then war torn, Yugoslavia with her husband. Mrs. Arsenovski and her husband were crossing Nelson Avenue at the intersection with Imperial Street in the City of Burnaby. Mrs. Arsenovski’s husband was struck by a motor vehicle, and Mrs. Arsenovski fell down striking the pavement.
Mrs. Arsenovski filed a Part 7 claim for benefits with ICBC but there was no evidence of her ever making an actual claim for bodily injury.. ICBC assigned Mr. Bodin and Mr. Gould as investigators to the ARsenovskis’ case. Mr. Bodin was part of the Bodily Injury Claims Investigation Team, and Mr. Gould was part of the Special Investigations Unit (“SIU”). The SIU is body generally assigned to investigate claims with potential fraud. The SIU does not have the ability to charge someone with a crime, but they can make recommendations to the Crown to do so. In this case, Mr. Gould recommended to the Crown that Mrs. Arsenovski be charged with making a false statement to obtain payment, which is a criminal offence. These charges were dropped on the day the criminal trial was supposed to commence.
The courts found that in the SIU’s recommendations to the Crown, they made various misstatements which “were seemingly calculated to shape the evidence one way and that is to overstate and misstate the certainty of the evidence against Mrs. Arsenovski and to ignore inconsistencies and deficiencies in the evidence.” It was also found that Mr. Gould had “pursued Mrs. Arsenovski with a vengeance that was significantly out of proportion with any objectively reasonable concern he could have had as to whether or not she actually might make a claim.“
The courts decided that even though awards for punitive damages should only be awarded in “exceptional” cases, the conduct of ICBC and their investigators “was so high-handed, reprehensible and malicious that it offends this Court’s sense of decency and is deserving of the punishment of punitive damages.” In assessing damages, the courts stated:
“The conduct of the liable defendants was high on the scale of blameworthiness. The defendant ICBC is a public insurance company. As an insurance company it is expected to act in good faith. As a public company, its employees are also expected to meet high standards of professional conduct.
One of ICBC’s key purposes and reasons for existence is to serve the residents of British Columbia, by providing compensation when someone is injured in a motor vehicle accident. The corporation does not serve the residents of this province when it uses tactics of intimidation to discourage civil claims.”
Of note here was the explicit statement that ICBC is expected to “serve the residents of British Columbia“. It was the failure to uphold these duties to the public that encouraged the courts to award such a large settlement against ICBC. Is this the end of this matter? Probably not, as ICBC is likely to appeal. Regardless, this should make ICBC put more thought into how it treats injured parties going forward.
