Special Costs awarded against ICBC for "abuse of process" in filing inconsistent pleadings

In reasons for judgment released this week, the court in Glover v. Leakey, 2017 BCSC 1287, awarded special costs against ICBC due to the filing of inconsistent pleadings in two separate actions.  In Glover, the defence denied liability and proceeded to a jury trial where the plaintiff's case was dismissed.  However, during the trial the plaintiff discovered that the defendant had previously admitted liability for the same accident in a different proceeding, and argued that this amounted to an abuse of process.  The trial judge then declared a mistrial before judgment was entered.  The plaintiff subsequently sought special costs.  In awarding special costs Madam Justice Gropper said:

[42]         I found that the inconsistent pleading by the defendant was an abuse of process because the principles such as judicial economy, consistency, finality and the integrity of the administration of justice were violated. The court cannot condone such conduct.

[43]         Abuse of process can be a basis for special costs. I find that in this case, the conduct of the defendant is of the type from which the court wants to disassociate itself, referring to Fullerton.

[44]         The defendant’s arguments about the merits of its position on the application and that special costs should only be for the application only, in my view, address the circumstances too narrowly. The plaintiff only discovered the inconsistent pleadings days as the jury trial was about to proceed; it was scheduled for 12 days; the jury panel had been summonsed; witnesses were on their way to or in Vernon to give evidence; expert witnesses were also arranged to be examined by video or in person; and the defendant’s counsel had threatened to apply for a mistrial if the inconsistent pleadings were raised before the trial judge or the jury. The application was made while the jury trial was underway. 

[45]         The repercussions of the abuse of process were wide spread and of significant expense to the plaintiff, who had marshalled all of her evidence. The defendant’s narrow approach fails to recognize that his conduct was not confined to the hearing of the application only; it went well beyond that.

[46]         Referring to the principles distilled in Westsea, I am satisfied that in awarding special costs in these unique circumstances meets the test of restraint but addresses the full impact of the defendant’s conduct; there are exceptional circumstances that justify such an order; the inconsistent positions on liability as between this action and the Yeomans’ action is reprehensible in and of itself, and amounts to an abuse of process; and the award of special costs in this action cannot be characterized as a “bonus” or further compensation for the plaintiff’s success on the application. 

[47]         The plaintiff is entitled to special costs arising from my finding that the conduct of the defendant was an abuse of process, including the costs of preparation and attendance at trial, as well as special cost of this application. The assessment of special costs is postponed until the defendant has exhausted all avenues of appeal.

The full judgment can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1287.htm