Judge orders ICBC to pay special costs over abuse of process

The ICBC has been ordered to pay special costs in a court case where a judge concluded the insurer had engaged in an abuse of process.

In August last year, B.C. Supreme Court Judge Miriam Gropper found the ICBC had taken opposite positions in two lawsuits involving the same car crash.

Michael Yawney, the lawyer for the plaintiff, argued the conduct was reprehensible and that special costs, awarded in rare cases where a judge deems the conduct is deserving of rebuke, should be ordered against the insurance company.

“Abuse of process can be a basis for special costs,” the judge said in a ruling on the costs issue released Wednesday. “I find that in this case, the conduct of the defendant is of the type from which the court wants to dissociate itself.”

The case related to an accident on Jan. 3, 2012, in which a Subaru driven by Kenneth Roger Leakey hit the back of a snowplow on Highway 97, about 70 kilometres north of Prince George.

Two passengers in the Subaru — Diana Glover, who is Leakey’s wife, and Penny Yeomans — were injured in the accident. They filed separate lawsuits against Leakey, who was represented by the ICBC, his insurer.

In Yeomans’s lawsuit, the ICBC admitted Leakey was liable for the crash and settled before it went to a full trial.

Glover, the co-owner of the Subaru, was unaware the ICBC had taken that position and took her case to court.

At her jury trial, the ICBC denied Leakey was liable for the crash.

The plaintiff’s lawyer discovered the inconsistency during the trial and brought it to the attention of the judge, who decided to await the outcome of the trial before ruling the ICBC engaged in an abuse of process.

The judge concluded that legal principles including consistency, finality and the integrity of the administration of justice had been violated. She granted judgment on the liability issue in favour of Glover.

The ICBC opposed the order of special costs, arguing a finding of abuse of process does not necessarily attract such an order.

But while agreeing there was no improper motive on the part of the defendant, the judge rejected the ICBC’s arguments.

“The repercussions of the abuse of process were widespread and of significant expense to the plaintiff, who had marshalled all of her evidence,” the judge said.

The assessment of the special costs was postponed by the judge until the defendant had exhausted all avenues of appeal.

“We are reviewing the award of special costs and considering our next steps, which would include a possible appeal,” the ICBC said in an email statement released on Thursday.