Court finds ICBC abused process

Mistrial declared in one of two lawsuits involving same collision

A B.C. Supreme Court judge has declared a mistrial after finding ICBC engaged in an abuse of process by taking opposite positions in two lawsuits involving the same car crash.

On Jan. 3, 2012, a Subaru Legacy 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 and they filed separate lawsuits against Leakey, who was represented by ICBC, as his insurer.

In Yeomans’ lawsuit, the Insurance Corp. of B.C. admitted that Leakey was liable for the crash and settled before it went to a full trial.

Glover, the co-owner of the Subaru, was unaware that ICBC had taken that position and took her case to court. At her jury trial, ICBC denied that Leakey was liable for the crash.

Glover’s lawyer, Michael Yawney, discovered the inconsistency during the jury trial and alerted the judge, Justice Miriam Gropper.

Yawney asked the judge to make a finding of an abuse of process, but Gropper decided to await the outcome of the trial before making such a decision. The jury found Leakey was not liable.

Gropper then ruled that while the evidence was thin, it was clear that there were inconsistent pleadings in the two cases and an abuse of process.

“I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey, knew or ought to have known of the inconsistent pleadings.”

The judge found that legal principles including consistency, finality and the integrity of the administration of justice had all been violated. She said it was more “egregious” because the case called upon the “wisdom of the community in the form of jurors.”

The judge dismissed ICBC’s claim that bringing the abuse application in the middle of the jury trial was too late. “This is also a surprising position for the defendant to take. Clearly the defendant and his insurer were aware of the inconsistent pleadings; but that was not shared with the plaintiff or her counsel.”

The judge declared a mistrial and said the matter will proceed to a new trial.

Gropper also granted judgment on the liability issue in favour of Glover.

The issue for the new trial will be the amount of the damages.

Yawney said his client was happy that the “unfairness” between the two lawsuits had been addressed and added it was the first time he’d experienced such a case.

He said Glover has suffered continuing pain and limitations from her injuries and hasn’t been able to recover completely.

Clearly the defendant and his insurer were aware of the inconsistent pleadings; but that was not shared with the plaintiff or her counsel.