ICBC is in trouble again with the Supreme Court, found to be abusing the court process. ICBC defended a clearly at fault driver that rear ended a snowplow causing significant personal injury to his passenger. In one lawsuit ICBC admitted his fault, settling the case, in the other they denied liability forcing the case to a jury trial. The jury found the rearing driver was not at fault! However, the jury’s findings were set aside due to ICBC’s abuse of process(Glover v. Leakey,2016 BCSC 1624) before the verdict was entered.
In this personal injury case the claimant was a backseat passenger in a Subaru Legacy which she co-owned with the her husband, the defendant ICBC insured. The husband was the driver of the Subaru. The Subaru struck the back of a snowplow on Highway 97 near Bear Lake, B.C. The jury found that the husband was not liable for the accident.
The judge declared a mistrial, granted judgment to the claimant on the issue of liability because ICBC engaged in an abuse of process. The Judge refused however to set aside portions of the jury’s verdict on damages.
In making her decision Judge Gropper noted that ICBC, the Province’s public mandatory motor vehicle insurer, had conduct of defending both lawsuits. The evidence provided was sparse, but clear that the ICBC adjuster in one claim determined that liability would be admitted on behalf of the husband of the claimant whereas the ICBC adjuster in the other lawsuit for the passenger of the other vehicle determined that liability would be denied. In para 81 the judge states,
“I expressly find that ICBC knew of the inconsistent pleadings and that the insured…knew or ought to have known of the inconsistent positions”
ICBC unsuccessfully argued that under the ICBC insurance scheme, courts have recognized that there will be inconsistent pleadings. The judge found that ICBC knowingly advanced an inconsistent position and accepted that as the defendant’s representative the diametrically opposed pleadings were knowingly advanced. In finding this was an abuse of process the judge goes on to comment,
 A pleading that is an abuse of process is not the same as the tort of abuse of process which requires “a wilful misuse or perversion of the court’s process for extraneous or ulterior purpose”: Border Enterprises Ltd. v. Beazer East Inc., 2002 BCCA 449 at para. 51. A pleading is distinct from an intentional tort…
Whether contrary to public policy
 The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. 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. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.
Having declared a mistrial the judge declined to rule on the claimant’s application to set aside portions of the jury verdict related to the money award. I suspect we have not heard the last of this case!