On the heels of ICBC’s anti-fraud campaign comes a decision of the British Columbia Supreme Court expressing displeasure with the manner in which ICBC pursues fraud claims.  Arsenovski v. Bodi involved at its outset a claim by the plaintiff that she had suffered minor injury when she fell as a pedestrian while with her husband who had been struck by a car.  The only claim made by the plaintiff was for medical expenses.  The plaintiff was a recent immigrant to Canada and she had great difficulty with English.  The plaintiff provided a statement to an adjuster at ICBC, which was interpreted eventually to be false and led to a recommendation that fraud charges be laid against the plaintiff.  The fraud charges were approved by the Crown and on day 1 of the criminal trial the charges were stayed, or not proceeded with.

The plaintiff then sued ICBC for malicious prosecution.  The findings of the trial judge were damning and included the following:

[356]  All of the circumstances lead me to conclude that Mr. Gould allowed his special status and powers to be used for the collateral advantages of deterring civil claims against ICBC.  This explains his tunnel vision and his conduct in deliberately misstating the evidence…

[357]  As stated in Proulx at para. 4, “individuals caught up in the justice system must be protected from abuses of power”. So too must persons who are involved in car accidents giving rise to potential claims against ICBC be protected from abuses of power by ICBC and its SIU officers.

[358]  I have concluded that Mr. Gould’s motives and conduct amount to such a perversion of the office of an ICBC SIU officer that the element of malice in the tort of malicious prosecution has been proven.

In addition to awarding the plaintiff the costs she incurred in legal fees in defending herself in the criminal matter and awarding $30,000 for damages for the emotional suffering caused by the malicious prosecution, the trial judge awarded $350,000 in punitive damages to punish ICBC and the SIU officer for their actions.  The trial judge’s analysis was as follows:

[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 Mr. Arsenovski is deserving of the highest level of condemnation.

[385]  While there is no hint of concealment of evidence, there were improper motives, namely the deterrence of civil claims for damages.

[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 in in defending civil claims.  The civil discovery process is already well-equipped to investigated 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.

[389]  There has been no hint in the evidence that ICBC apologized for its conduct.  There has been no hint that ICBC has taken steps to separate the close working relationship between SIU and civil adjusters or that it has imposed any measures to ensure that more objectivity and neutrality will be brought to bear on the use of police powers by ICBC employees than what was shown in this case.

The case illustrates how although ICBC has a clear right and duty to investigate claims, they must do so fairly.  There is clear potential to abuse the investigatory powers, as was seen in this decision.  Hopefully the comments of the court in this decision will result in some changes and moderation to the way in which ICBC pursues what it sees as fraudulent claims.