On March 2, 2016, Madam Justice Susan Griffin rendered a significant ruling in a case involving an immigrant couple that was mistreated by ICBC. She hired a lawyer and brought a civil suit against ICBC for, among other things, malicious prosecution. ICBC was punished for their conduct and ordered to pay the plaintiff $350,000 in punitive damages. Punitive damages are damages exceeding simple compensation and awarded to punish the defendant.
The judge has ordered ICBC and Gould to pay Arsenovski $30,000 for emotional distress and $350,000 in punitive damages.
Here are a couple links to news articles that have hit this morning:
In a nut shell, malicious prosecution is a common law intentional tort, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.
This decision is a must read and I will provide a link to the case once released to the public. Arsenovski v. Bodin, 2016 BCSC 359
The judge called the prosecution brought against Danica Arsenovski “malicious,” and found the actions by ICBC and special investigator John Gould “brought fear and shame to a vulnerable person.”
The court says that what happened to Mrs. Arsenovski was "odious".
The couple now into their late 60's moved to B.C. in September 1999 after leaving the war-torn former Yugoslavia.
In January 2000, the couple left an English language class in Burnaby when they were involved in an accident at the intersection of Nelson and Imperial. The couple was in a crosswalk when Arsenovski’s husband was struck by a motor vehicle. Arsenovski herself also fell as a result and was injured. A week later, the couple was encouraged by a friend to report the accident to ICBC. Their friend acted as a translator, as the couple spoke very little English.
The judge summarized that “Mrs. Arsenovski’s only understanding of the purpose of going to ICBC was that maybe it might pay the medical bills, including the ambulance bill. She was not told that they could make a claim for damages and that this was the reason for meeting with ICBC...” .
“She said there was not a similar system for making a report about an accident in the former Yugoslavia. ... She did not understand anything about the process at ICBC or think the statement was important in every detail.”
In response, the ICBC adjuster forwarded a report to Crown Counsel, written by Gould, recommending a total of three fraud charges against the couple. Gould was an in-house special investigator at ICBC. In the report, Gould alleged that Arsenovski made claims she was hit by the car. The Crown accepted one of the recommendations and charged Arsenovski with making a false statement contrary to the Insurance (Motor Vehicle) Act.
Mrs. Arsenovski had to hire a criminal defence lawyer to defend herself from those allegations. The court summarized that she went on to have those charges stayed and was successful in defending herself against the criminal charges. The judge has ordered ICBC and Gould to pay Arsenovski the $7,225.34 for legal fees she paid to defend herself in the criminal action.
During testimony in the civil case, Arsenovski said she was so shamed by the false charge that she did not tell her friends, relatives or adult children what had happened. The charge was stayed on the first day of the criminal trial when a lawyer cited weaknesses in the evidence.
In the decision, Justice Griffin found that “Mr. Gould’s handling of the file reveals that rather than operate from a presumption of innocence, Mr. Gould operated from a presumption of guilt in respect of Mrs. Arsenovski".
“Here, the alleged making of a false statement to ICBC was an invention by Mr. Gould. The false statement Mrs. Arsenovski was alleged to have made regarding how she fell was never made by her to ICBC. There was no such statement and so it could not have been false...”
The court notes that Gould’s report was written in such a way to dissuade the Arsenovskis from filing a civil claim for compensation for injuries: “Mr. Gould focused on the Arsenovskis’ potential civil claims, which they had not yet filed. He focused on the Arsenovskis being ‘recent immigrants’ who had just applied for ‘refugee status’ and the fact that they were on ‘social assistance.’ ”
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