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

Defendant who perjured himself and presented phony witness still successful in arguing contributory negligence

In a somewhat-bizarre decision released today, the court in Dizon v. Losier, 2017 BCSC 431, dealt with a defendant who admitted to perjuring himself and presenting a phony witness during the course of a personal injury trial.  The facts in Dizon involved a relatively routine rear-end motor vehicle accident.  Unfortunately for the defendant, however, he had forgotten to renew his car insurance at the time of the accident, and therefore had no insurance coverage.  As such, the defendant was forced to defend the action himself.  During the course of the trial the defendant presented a phony witness who claimed he had witnessed the crash, and that the plaintiff was at fault.  This witness also claimed he had never met the defendant.  Somewhat predictably, both the defendant and the witness crumbled under further questioning, and both admitted they knew each other and had made the whole thing up.  Despite this admitted perjury from both men, the trial judge still found the plaintiff 15% at fault for the rear-end collision.  Somewhat strangely, it does not appear that the defendant or the witness were charged with perjury as a result of their testimony, with the only sanction being the awarding of special costs for one day of the trial.  In giving reasons, Madam Justice Russell said as follows:

[1]             On August 26, 2014, the plaintiff, Charlston Dizon, suffered injury as a result of his Mercedes SUV being hit from behind by the truck of the defendant, Joseph Losier.

[2]             The defendant’s truck was uninsured. This was due to him inadvertently re-insuring the wrong vehicle. Mr. Losier drives two vehicles, and the insurance for the truck he was driving during the accident expired the day before the insurance for his other vehicle.

[3]             As a consequence, the defendant represented himself at trial, contesting both liability and damages.


[13]         The defendant alleges that the plaintiff was contributorily negligent. This is because, he maintains, the plaintiff stopped suddenly and for no reason, thus neglecting to act reasonably for the care of others on the road.

[14]         A unique issue that has arisen in this case is that of the defendant’s perjury. Its effect on the court’s ability to weigh any of his evidence is an issue in contention, and must be assessed by this Court.


[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[50]         ... I find that the evidence supports the defendant’s contention that the plaintiff played a key role in causing the accident. The plaintiff’s statement to the RCMP undermines the idea that, at the time of the accident, the light was amber. Instead, I find that, in suddenly braking, the plaintiff failed to take reasonable care for his own interests, an action that was causally connected to his injuries. The nature of the plaintiff’s injuries is consistent with those one would suffer from being rear ended after suddenly braking. Consequently, this was a foreseeable risk directly related to the plaintiff’s carelessness, and so there are no remoteness issues.


[52]         The defendant bears 85% responsibility for the accident and for the damages that flow from it. The plaintiff, due to his sudden braking, bears the responsibility for the remaining 15%.


[83]         The plaintiff will have his costs of the action, subject to any submissions.

[84]         In addition, the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0431.htm

Court says "reprehensible conduct" not required for special costs to be awarded

In reasons for judgment released today, the court in Tanious v. The Empire Life Insurance Company, 2017 BCSC 85, awarded the plaintiff special costs despite finding no reprehensible conduct on the part of the defendant.  The plaintiff in Taniuos was forced to sue her insurance company after they wrongfully terminated her disability benefits.  The court specifically found there was no "reprehensible conduct", but nonetheless accepted the argument that not awarding the true cost of retaining legal counsel would substantially deprive the plaintiff of the value of her insurance contract, and that special costs were necessary to fulfil the essential purpose of a disability insurance policy.  In giving reasons for judgment, Madam Justice N. Brown wrote:

[11]         ... Special costs are normally not awarded unless the court finds a party engaged in reprehensible conduct in the proceedings or in the circumstances giving rise to the cause of action...


[13]         The plaintiff does not seek special costs based on reprehensible conduct but submits that insurance claims of this nature entail other considerations that may in some circumstances justify an order for full indemnification of the insured’s costs. Those other considerations stem from the need to give effect to the fundamental purpose of the insurance contract by providing full indemnification to insureds in...situations where they are required to litigate in order to enforce the contract.


[149]     Disability insurance claims have unique characteristics that distinguish them from other personal harm cases, such as personal injury cases, fire losses, and life insurance claims...


[153]     The court may impose special costs for different reasons: against a defendant for reprehensible conduct or, in some cases, to ensure that the plaintiff will recover the full benefit of an insurance contract they have had to litigate to enforce, and thereby be put in the same position they would have been in had the insurer fulfilled its obligations initially.


[155]     I am satisfied that in the particular circumstances of this case it is fitting that I exercise my discretion in making an award for full indemnification in order to put the plaintiff in the position she would have been in had she not been forced to retain counsel and enforce the contract through litigation

The full text of the decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0085.htm


Court Awards $155,000 in Special Costs Against ICBC for Late Disclosure of Video Surveillance

In the recent decision of Norris v. Burgess, 2016 BCSC 1451, the court awarded $155,340.86 in special costs against ICBC as punishment for late disclosure of video surveillance, in circumstances where the court had previously ordered that all video surveillance be disclosed.  The court said:

[66]       ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.

[67]       …The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.

[76]       The reputation of the court was also affected.  Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[78]       In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1451/2016bcsc1451.html?resultIndex=1