An ICBC investigator’s “outrageous abuse of his authority” in the pursuit of a vulnerable immigrant woman has earned the Crown corporation a stunning rebuke from a BC Supreme Court Justice.
Madam Justice Susan Griffin awarded Danica Arsenovski $350,000 in punitive damages and $30,000 for emotional suffering after finding that ICBC investigator John Gould “cherry-picked” evidence to support a bogus fraud charge that was stayed by the Crown on the day Arsenovski’s criminal trial was set to begin.
Justice Griffin found that Gould, a former police officer, presumed Arsenovski to be guilty of fraudulently claiming injuries suffered in Burnaby shortly after arriving in Canada with her husband, having left their home country in the former Yugoslavia as it was ravaged by war in 1999.
According to the ruling, the couple was leaving an English class on January 31, 2000, on a rainy evening when her husband, Gone Arsenovski, was hit by a car as they crossed the intersection of Nelson and Imperial in Burnaby. Danica Arsenovski was knocked down and suffered bruising, and the couple reported the accident to ICBC a week later with the help of an interpreter because they spoke only Serbo-Croatian. The language barrier factored into much confusion about the nature of Danica Arsenovski’s injuries because she was unable to recall how she ended up on the ground after her husband was hit, and witness statements were disparate enough to determine exactly what happened. Griffin found that it was reasonable to conclude that her fall and resultant injuries were connected to her husband getting hit.
“The only other alternatives are rather absurd,” Justice Griffin writes in the 80-page opinion. “It is extremely unlikely that after only a few months in Canada, Mrs. Arsenovski was so quick-thinking and devious and knowledgeable about ICBC claims, that after her husband was hit by the car she threw herself to the ground in order to create injuries, all with the intention of advancing a fraudulent claim against ICBC.”
But when the file landed on the desks of Gould and adjuster Gregory Bodin, the court found that the pair pounced on the Arsenovskis partly due to bad blood with the couple’s lawyer Don Renaud. In emails, Bodin criticized Renaud and took “inordinate pleasure” in causing difficulty for his clients. Bodin had been “very unhappy” that another client of Renaud’s had obtained legal aid funding for an appeal.
Gould and Bodin worked closely, according to the ruling, and Griffin found that “within ICBC, or at least within the close working relationship of Mr. Bodin and Mr. Gould, the lines were blurred between legitimate defense of a civil claim, and illegitimate abuse of criminal investigatory powers,” the ruling states.
However, it was Gould who submitted a Report to Crown Counsel recommending charges of fraud and making false statements against the Arsenovskis in September 2000 that drew Griffin’s ire the most. Griffin found that Gould pursued Danica Arsenovski “with a vengeance” and that his “tunnel vision” was compounded by “insensitivity to language and cultural issues,” the ruling states.
“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,” the ruling states. “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.”
In awarding the punitive damages against ICBC, Griffin writes that “there is no doubt that conduct of the kind that occurred in this case could dissuade people who have proper claims from vigorously pursuing them against ICBC, and could even dissuade lawyers from acting on a controversial claim for fear that ICBC will disparage them and cause trouble for them or their clients in the future.”
The judge awarded $30,000 against Gould and ICBC for Danica Arsenovksi’s emotional suffering and $350,000 in punitive damages against ICBC as a “strong message of denunciation” because an award too small “could be seen as simply the cost of doing business. “