A judge has declared a mistrial in a motor vehicle accident case in which ICBC denied fault.  The case concerned a collision in which the driver of a vehicle ran into the back of a snowplow.  There were two passengers in the vehicle, both of which brought personal injury claims.  In one of those cases, ICBC admitted that the accident was the fault of the driver.  In the other case, ICBC denied that the accident was the fault of the driver.  The second case proceeded to trial in front of a jury.  Prior to the conclusion of the trial, the lawyer for the plaintiff found out about the second case and the admission of liability and asked the judge to make a finding of abuse of process.  The judge declined to do so, stating that she would wait for the outcome of the trial prior to making her decision.  The jury found that the driver was not at fault for the accident.

The judge declared a mistrial and set the case for a new trial.  She also granted judgment on liability against the driver, saying that ICBC knew of the inconsistent pleadings and that legal principles including consistency, finality and the integrity of the administration of justice had all been violated.  ICBC argued that the application for a mistrial was too late and the judge held that this was a surprising position to take given that both the defendant and ICBC were aware of the inconsistent pleadings and did not share this with the plaintiff or her counsel.

In considering the issue of abuse of process, the judge said as follows:

[53]  The court has inherent power to prevents its procedure from being used in a manner that brings the administration of justice into disrepute…The doctrine of abuse of process if a broad and flexible mechanism, its purpose is to enable the court to prevent misuse of its own process…

In applying the principles of abuse of process to the case before her, the judge stated as follows:

[68]  Courts retain jurisdiction to dismiss actions that are an abuse of process where the principles such as judicial economy, consistency, finality and the integrity of the administration of justice will be violated.  This doctrine is flexible and the categories of abuse of process are open.  In my view, the defendant’s inconsistent positions on liability offend all these principles which are fundamental to our system of law.

[69]  Before this action was filed the defendant admitted liability for the subject accident in the Yeomans Action.  He obtained the benefit of settlement with that defendant.  It cannot be open to him to re litigate something that he had already conceded in the Yeomans Action.  that offends the principle of judicial economy, unnecessarily expending the resources of the justice system and in this particular instance it is more egregious as the case called upon the wisdom of the community in the form of jurors.  It is also contrary to the principle of finality to permit something that has been admitted to be re-litigated.

She concludes that 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.

This decision is coming at a time when ICBC is seeking the approval of a rate increase, an increase that they are blaming in large part on the cost of litigation.  This case serves as an example of wasted legal fees by a decision of ICBC.  They had determined for one passenger that the accident was the fault of the driver and proceeded to resolve the case without a trial.  It is inherently unfair to not make the same admission for the other passenger, and to not advise the other passenger that the admission has been made.  This case demonstrates the power that ICBC has to control processes and thus costs associated with litigation or claims handling.  ICBC had the power to make the admission as they had done in the case of the other passenger.  They also had the power to withhold the information about the admission being made in the companion case.  When taking into consideration that the Insurance Corporation of British Columbia is a public mandatory motor vehicle insurer and as such had conduct of the defense of both of these cases the unfairness of the manner in which the ICBC chose to proceed is obvious.