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Inconsistent Positions

If multiple victims are injured in the same crash and each of them bring separate lawsuits to pursue fair, financial compensation against the same driver, what if ICBC admits that driver’s fault in one action, but denies it in another?

In her decision released August 31, 2016 (Glover v. Leakey 2016 BCSC 1624 ), Madam Justice Gropper explained that she had been  presiding over a jury trial involving a claim made by Ms. Glover, the back seat passenger of a car that had crashed into the back of a snowplow.  ICBC, on behalf of the driver, had denied that he was at fault (as bizarre as that might seem).  Part way through the trial, the lawyer for Ms. Glover learned that ICBC had taken the opposite fault position with another injured occupant of the same vehicle in the same crash, i.e. ICBC had admitted fault on behalf of the driver in that other lawsuit.

The lawyer for Ms. Glover brought this “abuse of process” to the attention of Madam Justice Gropper, and it was determined that the issue would be dealt with after the jury rendered its verdict.  The jury’s verdict was that the driver had not been at fault in crashing his vehicle into the back of the snow plow.  Madam Justice Gropper then dealt with the abuse of process issue.

Madam Justice Gropper noted that there is an abuse of process when principles such as the integrity of the administration of justice would be violated.  She found that the conflicting positions advanced by ICBC did compromise the administration of justice:

[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.

[71]         It is not relevant that Ms. Glover was a co-owner of the vehicle. The defendant has not explained how that distinction makes a difference. The same conduct of the defendant was involved in both the Yeomans and the Glover actions. To take different positions is inconsistent and provides unpredictability in the law.

[72]         I am also of the view that the administration of justice is compromised by the defendant’s conflicting positions that it was his fault and then it was not his fault. Neither position was advanced in the alternative. As Levine J.A. stated in Pepper’s Produce: “these proceedings cannot, as a matter of protecting the integrity of the court’s process, stand together.

After reviewing various legal arguments about the potential consequences of this abuse of process, Madam Justice Gropper declared a mistrial.  She also granted judgment on the liability issue in favour of the plaintiff.

Authored by Paul Hergott

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