A judge has ordered ICBC to pay an immigrant couple more than $350,000 after the corporation falsely accused them of insurance fraud.
In a judgment issued Tuesday, Justice Susan Griffin called the prosecution brought against Danica Arsenovski “malicious,” and said that the actions by ICBC and special investigator John Gould “brought fear and shame to a vulnerable person.”
“What happened to Mrs. Arsenovski was odious,” Griffin wrote in her 80-page decision.
Arsenovski, now 69, and her husband moved to B.C. in September 1999 after leaving the war-torn former Yugoslavia.
In January 2000, the couple was leaving an English language class one evening in Burnaby when they were involved in an accident in the intersection of Nelson Avenue and Imperial Street. The couple was in a crosswalk when Arsenovski’s husband was struck by a car. Arsenovski herself also fell as a result and was injured. It remains unclear as to whether Arsenovski’s fall was a result of being hit by the car or if she was knocked down by her husband being hit.
A week later, the couple was encouraged by a friend to report the accident to ICBC. Their friend acted as a translator, as the couple spoke close to no English at the time.
“Mrs. Arsenovski’s only understanding of the purpose of going to ICBC was that maybe it might pay the medical bills, including the ambulance bill. She was not told that they could make a claim for damages and that this was the reason for meeting with ICBC,” read the decision. “She said there was not a similar system for making a report about an accident in the former Yugoslavia. ... She did not understand anything about the process at ICBC or think the statement was important in every detail.”
In response, ICBC forwarded a report to Crown counsel, written by Gould, recommending a total of three fraud charges against the couple. In the report, Gould alleged that Arsenovski made claims she was hit by the car. The Crown accepted one of the recommendations and charged Arsenovski with making a false statement contrary to the Insurance (Motor Vehicle) Act.
During testimony, Arsenovski said she was so shamed by the false charge that she did not tell her friends, relatives or adult children what had happened. The charge was stayed on the first day of the criminal trial when a lawyer cited weaknesses in the evidence.
In Tuesday’s decision, Griffin found that “Mr. Gould’s handling of the file reveals that rather than operate from a presumption of innocence, Mr. Gould operated from a presumption of guilt in respect of Mrs. Arsenovski.
“Here, the alleged making of a false statement to ICBC was an invention by Mr. Gould. The false statement Mrs. Arsenovski was alleged to have made regarding how she fell was never made by her to ICBC. There was no such statement and so it could not have been false,” the decision read, noting Gould’s report was written in such a way to dissuade the Arsenovskis from filing a civil claim.
“Mr. Gould focused on the Arsenovskis’ potential civil claims, which they had not yet filed. He focused on the Arsenovskis being ‘recent immigrants’ who had just applied for ‘refugee status’ and the fact that they were on ‘social assistance.’ ”
Lawyer Thomas Harding, who represented Arsenovski in fighting the prosecution, said his client would be happy to have the case closed.
“I expect that she’ll be pretty happy — happier with the complete vindication than the money, I’m certain,” he said. “The emotional effect on Mrs. Arsenovski? She was terrified and it was very difficult to give testimony about how this (accusations) affected her.”
The judge has ordered ICBC and Gould to pay Arsenovski a total of $7,225.34 for legal fees, $30,000 for emotional distress and $350,000 in punitive damages.