ICBC Ordered to Pay $350,000 in Punitive Damages for Malicious Prosecution

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by Peter Buxton, trial lawyer

While it is appropriate for the Insurance Corporation of British Columbia to combat fraud in dealing with property and injury claims arising from motor vehicle accidents, the public expects that it will do so fairly and in good faith.  Unfortunately this is not always the case.

In the case of Arsenovski v. Bodin, Madam Justice Griffin of the British Columbia Supreme Court has ordered the Insurance Corporation of British Columbia to pay $350,000 in punitive damages for the malicious prosecution of Ms. Arsenovski who was alleged to be making a fraudulent claim following a pedestrian accident.

A Special Investigation Unit officer employed by ICBC alleged that Ms Arsenovski was fraudulently advancing a claim for being struck by a vehicle while crossing in a crosswalk.  In a Report to Crown Counsel he asked that charges be brought against the woman for making a fraudulent statement to ICBC.

However, Madam Justice Griffin found that the statement was not false and noted that the Crown had stayed charges against Ms. Arsenovski on the first day of the criminal trial.

[382]  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.

[383]  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.

[384]  Not only were the public resources of ICBC wasted by the malicious prosecution of Mrs. Arsenovski, it was foreseeable that this would lead to wasting of the public resources of Crown counsel and judicial resources on the day the case came to trial. Mr. Gould also encouraged other public agencies to take action against her without reasonable grounds to do so, namely health and immigration authorities. The wasting of such public resources to so vindictively pursue Mrs. Arsenovski is deserving of the highest level of condemnation.

Madam Justice Griffin noted that ICBC has significant resources to investigate and process claims and ought not to resort to intimidation by a police officer that it employs in its Special Investigation Unit.

[386]  It has to be remembered that ICBC already has all the tools of civil procedure at its disposal, as well as trained adjusters and a sophisticated defence bar, to assist it in defending civil claims. The civil discovery process is already well-equipped to investigate accidents and injuries, and compels the production of all relevant medical evidence if there is a question about whether an injury has occurred. These tools work very well.

[387]  People bringing lawsuits seeking damages as a result of personal injuries suffered in car accidents face a very public prying into all aspects of their private lives, which already can be a significant deterrent.

[388]  ICBC did not need to use the power and authority of a peace officer to intimidate people who might be injured by the use of a car.

The Court considered the effect of allowing ICBC to use these tactics and Justice Griffin commented

[394]  There is no doubt that conduct of the kind that occurred in this case could dissuade people who have proper claims from vigorously pursuing them against ICBC, and could even dissuade lawyers from acting on a controversial claim for fear that ICBC will disparage them and cause trouble for them or their clients in the future. A strong message of denunciation must be sent to ICBC.

[395]  While the community would find it reasonable for ICBC to fight fraud, I am confident that the residents of British Columbia would find it outrageous for a public corporation to use its resources maliciously. The conduct that occurred here must be condemned and punished to reflect the community’s censure and to ensure that the message is brought home to the corporation and its employees not to engage in this kind of misconduct again. The residents of British Columbia are entitled to expect professional, objective treatment by the employees of ICBC, as well as an appropriate degree of cultural sensitivity towards people who are recent migrants from other countries.

If you have concerns about how ICBC is dealing with your claim and would like more information contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling me at 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

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