Inconsistent Pleadings Filed By ICBC For Same Accident Deemed To Be Abuse Of Process : Mistrial Granted

In Glover v. Leakey, the Plaintiff was a passenger injured in a motor vehicle collision when it struck the back of a snowplow, and consequently commenced legal proceedings against the driver of the vehicle that she was a passenger in. Liability was denied by ICBC’S lawyer.


The other passenger also sued the driver. In that case, liability was admitted, and a settlement was eventually reached. In the case at bar, it was not discovered until the jury trial was already underway that there had been this inconsistency with respect to the issue of liability in the pleadings. Nevertheless, the case did continue, due to a misunderstanding between counsel, until the jury deliberated. The jury would ultimately find that the Defendant was not negligent.


Before the judgment was entered, however, the Court heard submissions from counsel with respect to the inconsistent pleadings, more specifically the acceptance of liability for one of the passengers in the vehicle, but a denial of liability for the other passenger.


Counsel for the Plaintiff argued that the Defendant was aware of his role in the motor vehicle accident from the start, and could not now claim that his knowledge of it was incomplete or imperfect. Further, it was an abuse of process to allow the Defendant to deny liability in the case at bar, whereas before liability was admitted. Counsel for the Plaintiff also sought judgment in favor of the Plaintiff with respect to the issue of liability.


ICBC’S lawyer argued that there was no abuse of process, as it is permissible to have inconsistent defences to an action. Further, if there are inconsistent pleadings, then it is not an abuse of the Court’s process, as the Court must consider the specific circumstances of each case. ICBC’S lawyer also argued that the Defendant did not knowingly advance the differing positions on liability.


The Court would rule that the liability denial by the Defendant in the second action had indeed been an abuse of process, given the inconsistency with the pleadings in regards to the other passenger’s action, and ultimately granted liability in favor of the Plaintiff. The Court also declared a mistrial.


[67] In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions.


[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.

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