If ICBC and its officers pursue false allegations of fraud, can they be financially punished? Today’s case offers a resounding affirmation that false fraud allegations should not go unpunished, and such victims should be compensated for the malice they suffer at the hands of ICBC and its officers.
In today’s case of Arsenovski v. Bodin (2016 BCSC 359) the plaintiff was walking across a crosswalk with her husband when he was struck by a vehicle. It was a dark and rainy night in Vancouver. She was not struck by the vehicle, but she did fall and suffered bruising. At the recommendation of others, she and her husband reported their injuries to ICBC. The couple had immigrated to Canada from Yugoslavia as refugees just four months before the incident, and were unfamiliar with the insurance structure in BC.
The couple did not speak English, and had in fact attended an English class earlier on the evening of the incident. They reported their injuries to ICBC through the use of a translator. A statement written in English was signed by Mrs. Arsenovski (the plaintiff), described the events of that evening as follows:
I do not have a BC driver’s license. I do not work. I collect welfare. I have been in BC since Sept 1999. I have come here with my husband from Yukoslavia [sic]. On Jan 21, 2000, my husband and I were pedestrians, crossing Nelson Street at Imperial. We were holding hands and he was on my right side[handwritten note inserted “She remembers light signal was open for them to go”]. The last thing I remember was stepping off the curb to cross the street. I don’t know how far we had walked on the street. The next thing I remember was being on the pavement. I got up and checked my husband. I put my hand under his head and saw there was blood. I called for help. My husband was unconscious at this time.
ICBC’s special investigations unit officer (Mr. Gould) requested that the crown lay charges against Mrs. Arsenovski for making a false statement to ICBC, as she was not struck by the vehicle. Mr. Gould recommended that Mrs. Arsenovski be fined $5,000.00. Mr. Gould did not stop there – he also contacted Immigration Canada to “pass on information about the Arsenovskis”. This meant alerting them to the allegations of medical fraud and insurance fraud that he was investigating. Immigration Canada informed him of the implications criminal charges would have on their landed status – and that they would have to receive a pardon. Mr. Gould could provide no evidence to substantiate his feeling that it was his duty to alert Immigrations Canada of his suspicions. On this point, Justice Griffen noted (paras 350-351):
I find it was an attempt to cause very serious trouble for the Arsenovskis and an outrageous abuse of his authority and the stature of his office… Mr. Gould pursued Mrs. Arsenovski with a vengeance that was significantly out of proportion with any objectively reasonable concern he could have had as to whether or not she actually might make a claim. On Mr. Gould’s own estimates Mrs. Arsenovski’s claim (which was potential only) was of little monetary value. He understood that her hospital expenses added up to $240. He thought that perhaps her bodily injury claim, which had not yet been advanced, might be in the range of $7,000 to $10,000.
On the first day of the criminal trial, the charges were stayed (dropped), because Mrs. Arsenovski’s statement was not false. It said nothing about being struck by the vehicle. Mrs. Arsenovski sued ICBC and Mr. Gould for malicious prosecution. In agreeing with Ms. Arsenovski’s allegations of malicious prosecution Madam Justice S. Griffin concluded:
I find that the conduct of the liable defendants was so high-handed, reprehensible and malicious that it offends this Court’s sense of decency and is deserving of the punishment of punitive damages. I therefore find that the plaintiff is entitled to punitive damages as against Mr. Gould and ICBC.
She went on to order that ICBC and Mr. Gould pay Mrs. Arsenovski for her legal fees of the criminal trial ($7,225.34), and for the emotional distress ($30,000.00) they inflicted. She also ordered that ICBC pay Mrs. Arsenovski $350,000.00 in punitive damages. Madam Justice S. Griffen’s summarized her findings as follows:
[384] Not only were the public resources of ICBC wasted by the malicious prosecution of Mrs. Arsenovski, it was foreseeable that this would lead to wasting of the public resources of Crown counsel and judicial resources on the day the case came to trial. Mr. Gould also encouraged other public agencies to take action against her without reasonable grounds to do so, namely health and immigration authorities. The wasting of such public resources to so vindictively pursue Mrs. Arsenovski is deserving of the highest level of condemnation.
[385] While there is no hint of concealment of evidence, there were improper motives, namely the deterrence of civil claims for damages.
…
[423] What happened to Mrs. Arsenovski was odious: a newcomer to a strange country, unable to communicate in the local language, she experienced the shock of seeing her husband hit by a car and she fell down too. Having experienced this upsetting event, still worried about her husband’s health, and having reported minor injuries to ICBC, she then experienced the wrath of ICBC and its special investigator, Mr. Gould.
[424] Mr. Gould, acting as an ICBC SIU investigator, submitted an RTCC recommending that Mrs. Arsenovski be charged with making a false statement, and she was so charged. He was motivated to dissuade civil claims against ICBC. He did not have objectively reasonable grounds for believing that Mrs. Arsenovski had committed an offence. He did not have a subjective belief in her guilt.
[425] Mr. Gould’s RTCC was materially misleading. I have concluded his conduct amounts to an abuse of his office, and that he and ICBC are liable to Mrs. Arsenovski for the tort of malicious prosecution.
[426] The malicious prosecution brought fear and shame to a vulnerable person. The criminal charge against Mrs. Arsenovski was only stayed on the day of the criminal trial. The stain she feels on her character as a result of being charged criminally might never be erased.
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