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

Posted by Glenn on September 4, 2016 Leave a Comment

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.

Original Trial Justice Hears Costs Application After Mistrial

Posted by Glenn on November 4, 2013 Leave a Comment

In the context of ICBC injury claims, mistrials can sometimes arise. A mistrial is when a trial is found to be null and void due to some irregularity in the proceedings. Examples of this can include inappropriate opening or closing submissions made by counsel for the Plaintiff or counsel for the Defendant.

In Walker v. Doe, the Plaintiff was a motorcyclist who was injured when he was struck by a tire from a motor vehicle driven by an unnamed motorist. The Plaintiff brought an ICBC injury claim for pain and suffering, as well as various other forms of damages. The trial proceeded via judge and jury, with the judge declaring a mistrial after Plaintiff counsel’s closing submissions. An appeal of this ruling was then filed. Counsel for the Defendant then brought an application for costs, which Plaintiff‘s counsel argued should be heard by the Justice presiding over the new trial. Counsel for the Defendant argued otherwise. The original trial Justice would eventually rule that, in the circumstances of this case, that the original trial Justice would hear the costs application. In particular, the Justice focused on the issue that the main focus of the costs application was an order for special costs against counsel for the Plaintiff.

[12] The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.

[13] The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed.

[23] A further factor militates against having the ultimate judge who oversees the trial of this matter address the present application. Special cost awards are fact driven; FFS HK Ltd. v. P.T. 25 (Ship), 2011 BCSC 1418 at para.10. The decision whether to award special costs “is a matter of judgment on all the facts for the individual case in deciding whether the party in question went over the line”; Cimolai v. Hall et al, 2007 BCCA 225 at para. 71.

[24] The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:

[61] This trial was difficult for all concerned. Ms. Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.