Arsenovski v. Bodin, 2016 BCSC 359

In a recent decision out of British Columbia, the Court ordered a punitive damage award of $350,000 against ICBC. The decision of Arsenovski v. Bodin underscores the importance of an insurer’s responsibility to act in good faith when undertaking claim investigations.  In Arsenovski, the Court found the insurer acted maliciously and negligently in its investigation. The case reinforces the fact that insurers should reassess their position in response to new information and evidence to ensure they are acting reasonably and in good faith to their insureds.

Released March 1, 2016 | Full Decision [CanLII]


Mr. and Mrs. Arsenovski were walking home from English language classes when Mr. Arsenvoski was stuck by a car. Mrs. Arsenvoski was also injured in the incident. Mrs. Arsenvoski was unsure of how she fell, resulting in her being injured. Both were taken to hospital.

The couple spoke little English, being immigrants of the former Yugoslavia. They reported the accident to ICBC on advice from a friend who also acted as their translator. At the time Mrs. Arsenovski believed that ICBC might provide assistance with medical and ambulance bills only, she did not advance a claim for her injuries.

The ICBC adjuster took an aggressive stance against the claim, and engaged ICBC’s Special Investigations Unit. The alleged false statements included Mrs. Arsenovski’s version of events regarding how she fell and the extent of her injuries.

The investigator recommended to Crown Counsel that Mrs. Arsenovski be charged with fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code, and making a false statement contrary to s.42.1(2)(b) of the Insurance (Motor Vehicle) Act (“IMVA”). The Crown accepted one of the recommendations and charged Mrs. Arsenovski with making a false statement contrary to s.42.1(2)(b) of the Insurance (Motor Vehicle) Act.   This offence carried a maximum fine of $25,000, or imprisonment of up to two years, or both.

Mrs. Arsenovski sued ICBC, the adjuster and investigator for malicious prosecution on the basis that the defendants misstated evidence to support the criminal charges against her. The defendants argued that they should not be held to a standard of perfection or judged with hindsight. They argued that the ICBC investigators had information supporting the RTCC, and that they had no motive or malice against her.

The Decision

The Honourable Madam Justice Griffin found the insurer and its agents jointly and severally liable to Mrs. Arsenovski for the tort of malicious prosecution and awarded her $30,000 for emotional suffering.  Justice Griffin also made the extraordinary award of $350,000 in punitive damages.

The judge found that ICBC’s investigation approached Mrs. Arsenovski with a presumption of guilt, saying that the malicious prosecution and “wasting of such public resources to so vindictively pursue Mrs. Arsenovski is deserving of the highest level of condemnation”


Regarding the malicious prosecution charge, Justice Griffin found absolutely no objective evidence that amounted to reasonable and probable grounds for asserting that Mrs. Arsenovski made a false statement to the ICBC.  Further, “it was especially illegitimate to assert this as evidence of a crime when Mrs. Arsenovski did not speak English and when no attempt was made to consider or understand her medical records”

Justice Griffin concluded that the alleged false statement by Mrs. Arsenovski was an invention of the ICBC investigator and that the investigator never looked at the evidence objectively for its possible innocent interpretation, he only looked at it to the extent he felt it could support his theory of the case.

Justice Griffin found the ICBC investigator was a biased advocate. Justice Griffin found no issue with Mrs. Arsenovski’s credibility as a witness.

Justice Griffin concluded that the insurer’s “motives and conduct amount to such a perversion of the office of an ICBC SIU officer that the element of malice in the tort of malicious prosecution has been proven.”

This case is presently under appeal by the ICBC.


Read the full Decision on CanLII