08 Mar Court Orders ICBC to Pay $350,000 for Malicious Prosecution

Posted at 09:59h in News by Acheson Sweeney Foley Sahota

A British Columbia woman sued ICBC for malicious prosecution and won (Arsenovski v. Bodin, 2016 BCSC 359). She was awarded $350,000 in punitive damages and $30,000 for emotional suffering. The Court based this award on a finding that an ICBC investigator “cherry-picked” evidence to charge the woman with making a false statement, a charge that was later dropped on the day her criminal trial was to start.

Mr. and Mrs. Arsenovski immigrated to Canada from war torn former Yugoslavia in September, 1999.  A few months later, Mr. Arsenovski was struck by a vehicle while they were in a crosswalk.  Mrs. Arvenovski also fell. A week later, a friend helped the couple report the incident to ICBC. The couple did not speak English and the friend acted as an interpreter. Mrs. Arsenovski also had difficulty recalling the sequence of events. The language barrier and her limited recall created confusion about her injuries.

The ICBC investigator wrote a report to Crown Counsel, recommending that Mrs. Arsenovski be charged with fraud over $5,000 and making a false statement.  This “false statement” related to hospital records from the night of the accident, at a time when Mrs. Avernoski knew almost no English and no interpreter was available.  The Crown proceeded with the charge of making a false statement but later dropped the charge.  Mrs. Arvenovski then sued ICBC and their investigators for malicious prosecution and negligent investigation.

The Court accepted that the Plaintiff’s injuries related to the fall and the vehicle striking her husband.  The Court rejected the alternatives suggested by ICBC as “absurd” and stated:

“It is extremely unlikely that after only a few months in Canada, Mrs. Arsenovski was so quick-thinking and devious and knowledgeable about ICBC claims, that after her husband was hit by the car she threw herself to the ground in order to create injuries, all with the intention of advancing a fraudulent claim against ICBC.”

The evidence showed that the ICBC investigators had also formed a negative impression of the couple because they didn’t like their lawyer, whom they described as “slimy”.  The Court found that with respect to ICBC and its investigators, “the lines were blurred between legitimate defense of a civil claim, and illegitimate abuse of criminal investigatory powers”.

In submitting a report to the Crown recommending criminal charges, the Court found the ICBC investigator had “tunnel vision” and was insensitive to cultural issues and language barriers.  Action was taken without reasonable grounds.

The Court found this investigation wasted the public resources of ICBC, the Crown and the judiciary. In assessing damages, the Court noted that there should be a strong denunciation message.  The Court awarded damages as follows:

  1. a)             $7,225.34 for legal fees incurred in defence of the criminal charge plus pre-judgment interest;
  2. b)             $30,000 for her emotional distress; and
  3. c)             $350,000 punitive damages.

 

This case attracted significant media coverage: