Written by Mike Yawney, Partner.

Senior Litigation partner Michael Yawney and associate Ryan Irving recently obtained an interesting decision in a case called Glover v. Leakey.  In that case, the Defendant was involved in a crash and injured two passengers.  One sued and fault was specifically admitted; only quantum was then in issue and that issue was settlement.  The second passenger was our client, Ms. Glover, she also sued,  but fault for the accident was specifically denied. Both claims were defended by ICBC.
In the midst of a two week jury trial Mr. Yawney and Mr. Irving  discovered the inconsistent pleadings and brought an application claiming that this was unfair and amounted to an abuse of process, asking for a directed judgment on liability.  The application was heard and the decision on abuse of process deferred, by agreement with counsel and the judge. This apparently was misunderstood by defence counsel. Due to the apparent misunderstanding the matter proceeded to verdict on liability and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process,  set aside the jury verdict and granted judgment on liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:

 

• [67] In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. 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 positions.

• [68] Courts retain jurisdiction to dismiss actions that are an abuse of process where the principles such as judicial economy, consistency, finality and the integrity of the administration of justice will be violated. This doctrine is flexible and the categories of abuse of process are open. In my view, the defendant’s inconsistent positions on liability offend all these principles which are fundamental to our system of law.

• [69] Before this action was filed the defendant admitted liability for the subject accident in the Yeomans Action. He obtained the benefit of settlement with that defendant. It cannot be open to him to re-litigate something that he already conceded in the Yeomans Action. That offends the principle of judicial economy, unnecessarily expending the resources of the justice system and in this particular instance it is more egregious as the case called upon the wisdom of the community in the form of jurors. It is also contrary to the principle of finality to permit something that has been admitted to be re-litigated.

• [70] Consistency is also compromised. A position that Mr. Leakey is on one hand negligent but on the other not negligent cannot be anything but irreconcilable and inconsistent. The only distinction in the pleadings is that in the Yeomans Action the defendant asserted that Ms. Yeomans failed to properly adjust and securely fasten her seatbelt. That does not alter the bare fact of the defendant’s negligence.

• [93] 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.

• [94]        I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1. A declaration of mistrial means that the matter will proceed to a new trial.
2. I grant judgment on the liability issue in favour of the plaintiff.
3. The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

• [95]  Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.

This decision is an important one in terms of ensuring more fairness to injured Plaintiffs bringing claims. It is also important in terms of the cost of this type of litigation; putting more onus on insurance companies like ICBC to fairly adjust and settle claims, rather than playing fast and loose with the truth.  Extra court days, preparation and costs had to be devoted to dealing with the issue of liability when the Corporation had already accepted that it’s insured defendant was responsible for causing the subject accident. In a time where insurer’s like ICBC pay for ads that like to promote blame against claimants for rising claims costs, this case demonstrates that it is in fact ICBC that conducts itself in a way that adds unnecessary costs. 

The Nixon Wenger legal team will be applying for special costs against the defendant and his insurer as ordered by Madam Justice Gropper; that decision will be an interesting one as well.