02 Mar BC Woman Awarded $350,000 in Punitive Damages Against ICBC

The British Columbia Supreme Court has ruled that people involved in car accidents “must be protected from abuses of power by ICBC and its SIU officers”. We wholeheartedly agree.

In the landmark decision of Arsenovski v. Bodin, 2016 BCSC 359, Madam Justice Griffin concluded that ICBC Special Investigator, John Gould, maliciously prosecuted Danica Arsenovski. Justice Griffin described Gould’s actions as a “perversion” of his office.

As reported in Justice Griffin’s reasons, Mrs. Arsenovski arrived in Canada from war-torn (former) Yugoslavia in September 1999, with her husband. Having fled violence and instability in her country of origin, she came to Canada with only a limited command of English, a very important fact in this case. On a dark, rainy evening in January of 2000, the Arsenovskis were walking home from an English class when a left-turning vehicle struck her husband. Mrs. Arsenovski also fell to the ground. The ambulance attended at the scene and took them both to the hospital.

About a week later, the Arsenovskis reported the accident to ICBC. They did so with the assistance of an interpreter, but without a lawyer. Mrs. Arsenovski never advanced any claim for bodily injury against ICBC, as she only sustained mild injuries in the accident. She asked for Part VII benefits to cover some of her medical treatments but ICBC refused to pay, taking the position that she had made a “willfully false statement.” ICBC took this position despite the fact that the ambulance and hospital records, the records kept by Mrs. Arsenovski’s physician and eyewitness accounts each provided at least some support for her version of events. Indeed, Justice Griffin concluded that the only alternatives to her account of the accident were “rather absurd.”

The “false statement” Mrs. Arsenovski allegedly made only appears in the hospital records from the night of the accident. At that time, she knew almost no English and the hospital did not have an interpreter available. There is no evidence that she ever saw those records, approved of them or even that she made the statement in question.

That didn’t matter to ICBC.  In July of 2000, ICBC investigator John Gould wrote a Report to Crown Counsel, recommending that Mrs. Arsenovski be charged with fraud over $5,000 and making a false statement. Initially the Crown only charged her with making a false statement, a charge they eventually dropped. Mrs. Arsenovski subsequently brought a lawsuit against ICBC and its agents, including John Gould, for malicious prosecution and negligent investigation.

Justice Griffin described ICBC’s witnesses and their evidence at various points in her written judgment as self-serving, rehearsed, cagey, arrogant, defensive, angry, disrespectful and haughty. The Judge determined that Mr. Gould had misstated the accounts of witnesses and that he reached an “obviously incorrect” conclusion about whether Mrs. Arsenovski made a false statement. The Judge further found that ICBC’s investigation of Mrs. Arsenovski demonstrated tunnel vision, as well as insensitivity to the language and cultural issues at play.

In concluding that ICBC and John Gould had maliciously prosecuted Mrs. Arsenovski, Justice Griffin emphasized that people injured in motor vehicle accidents “must be protected from abuses of power by ICBC and its SIU officers”.  Justice Griffin ordered ICBC to pay Mrs. Arsenovski:

• $7,225.34 for her legal fees,
• $30,000 for her emotional distress, and
• $350,000 in punitive damages.

Mrs. Arsenovski’s experience should serve as a warning: if you’ve been injured in a motor vehicle accident, you may run up against an insurer willing to abuse its power to deny your claim, even going so far as to drum up malicious criminal charges against you. Recent immigrants to Canada are most vulnerable because, in addition to the challenges faced by every injured person, they must also contend with language barriers and unfamiliar laws or institutions.

Acheson Sweeney Foley Sahota will help, by battling against abuses of power by insurance companies, and getting you the settlement or judgment you deserve.