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ICBC PENALIZED FOR MALICIOUS PROSECUTION

Mar 21 2016

If you’ve spent any time listening to the radio recently, you will have likely heard advertisements which bemoan the millions of dollars ICBC (i.e. taxpayers) loses each year due to what ICBC says are fraudulent injury claims. Interestingly, however, a recent judgment of the B.C. Supreme Court held that it was ICBC that had cost taxpayers substantial sums of money as it wasted public resources by maliciously prosecuting a vulnerable immigrant woman for fraud which she did not commit.

A BC Supreme Court judge recently wrote a scathing judgment which held ICBC accountable for an “outrageous abuse of authority” that was “deserving of the highest level of condemnation,” and ordered ICBC to pay $350,000 in punitive damages.

According to the judgment, Danica Arsenovski and her husband had recently immigrated from the former Yugoslavia, and were leaving an English class one evening when the husband was struck by a car in an intersection. Danica also fell to the ground, suffering relatively minor injuries. The Arsenovkis reported the accident to ICBC soon after and, largely due to the language barrier, some confusion ensued regarding the precise circumstances regarding Danica’s fall and whether or not it was directly caused by the accident.

ICBC’s investigator, John Gould, took the position that Mrs. Arsenovski – a recent immigrant with presumably no knowledge of BC’s insurance scheme  – had the presence of mind to concoct a story regarding the circumstances surrounding her fall in order to fraudulently gain a financial benefit. Gould then issued a report to crown counsel which contained a recommendation to prosecute Mrs. Arsenovski with charges of fraud and making false statements.

The judge in the case carefully reviewed the evidence available to Gould and concluded there was no legitimate basis for prosecuting Mrs. Arsenovski. Madam Justice Griffin held that Gould pursued Mrs. Arsenovski “with a vengeance” and “tainted tunnel vision” and that Gould “framed and misstated the evidence”. In fact, the court held that this malicious prosecution against Mrs. Arsenovski was due at least in part to personal bad blood between Gould and the Arsenovskis’ lawyer.

A punitive damages award of this magnitude is exceedingly rare in Canadian courts. Such an award is reserved for conduct that is considered so high-handed, reprehensible and malicious that it offends the court’s sense of decency; and Justice Griffin found it appropriate on these facts. According to the ruling, ICBC’s key purpose is to serve BC residents and provide compensation to those who have been injured. Not only did ICBC fail to do so, it wasted public resources by maliciously prosecuting Mrs. Arsenovski and encouraging other public agencies to take action against Mrs. Arsenovski.

For all of ICBC’s alleged concern over taxpayers footing the bill for improper injury claims, it is sometimes the unreasonable positions taken by ICBC, such as this one in this case, that cost taxpayers money. The fact is that the vast majority of injury claims are legitimate, yet ICBC can make unreasonably low settlement offers and sometimes refuse to negotiate in good faith until litigation is well underway. Despite its claims to the contrary, ICBC is not necessarily concerned with your best interests.

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