By Stuart Cappus
ICBC has once again been caught acting improperly in its defence of motor vehicle accident claims. This time a BC Supreme Court judge was forced to declare a mistrial after finding that ICBC committed an abuse of process by taking inconsistent positions in two related lawsuits.
In the case at bar, a woman who was a passenger in a car sued the driver when he collided with a snow plow. ICBC defended the driver and denied he was at fault for causing the crash. The case proceeded to trial and a jury found that the driver was not responsible.
The only problem was that there had been another passenger in the car who had also sued the driver. In that lawsuit, however, ICBC admitted that the driver was at fault. That passenger went on to settle her claim with ICBC.
The first woman’s lawyer found out that ICBC had admitted fault on behalf of the driver in the other lawsuit and asked the judge to declare a mistrial because of ICBC’s irreconcilable positions.
The judge found that ICBC knew in advance that its positions in the two lawsuits were “diametrically opposed” and determined that the inconsistent stances amounted to an abuse of the Court’s process. Because of that, the judge declared a mistrial, concluding that:
 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.
You can click on the link below to read the trial judge’s Reasons for Judgment: