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Car Accident injury Claimant Escapes Dismissal and ICBC gets to Change Admissions


The injury claimant, a pedestrian, was crossing Nelson Avenue in Burnaby, B.C. when her husband was hit by a car(Arsenovski v. Bodin, 2012 BCSC 35).  The claimants husband subsequently reached a settlement with the Insurance Corporation of British Columbia (“ICBC”) for compensation resulting from his injuries. The claimant, although not struck by the motor vehicle, claimed relief for the injuries suffered when she slipped on the road during the car accident.
The injury claim against ICBC remained ongoing for over 12 years by the time this application was heard.
The injury claimant initally sought no-fault medical and disability payments for her injuries from ICBC. She gave a statement through a translator about the car accident and her injuries to an ICBC adjuster. ICBC concluded, after further investigation, that the claimant provided a false statement to ICBC and initiated steps which led to her being charged with fraud.  the claimant said the translator misinterpreted her statement. The Crown stayed the fraud charge on hearing the statement had come not directly from the claimant, but from an interpreter.
The injury claimant then sued ICBC for negligent and malicious prosecution and sued two of its employees. There was serious delay in bringing this  case forward and the next step in the lawsuit against ICBC came 49 months later  when the claimant’s lawyer served a notice of intention to proceed.
In refusing to dismiss the claim the Judge was conflicted,

[44]  In the instant case, I conclude that there was inordinate delay, that there was inexcusable delay on the part of plaintiff’s counsel, and some prejudice, but not serious prejudice, suffered by the defendants, and that such prejudice as exists is reduced by the records so carefully maintained by ICBC and its employees.

[45] Given all the circumstances, including the need to ensure that justice is attained and exercising the discretion afforded me, I conclude that the plaintiff ought to have the opportunity to advance her claim in a trial. I dismiss the defendants’ application that the plaintiff’s action be dismissed for want of prosecution.

Equally conflicted the Judge allowed ICBC to amend the deemed admissions based on the innocent mistake of the ICBC lawyer concluding,

[27]  Having considered the principles upon which to approach an application to withdraw or set aside a notice to admit and the circumstances found in the instant case, I conclude that justice would be ill-served were the deemed admissions allowed to stand without a reply. The defendants will have seven days from the filing of this judgment to serve plaintiff’s counsel with their reply.

 Posted by BC Personal Injury Lawyer Mr. Renn A. Holness

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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