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Yawney asked the judge to make a finding of an abuse of process, but Gropper decided to await the outcome of the trial before making such a decision.

The jury found Leakey was not liable.

Gropper then ruled that while the evidence was thin, it was clear that there were inconsistent pleadings in the two cases and an abuse of process.

“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 pleadings.”

The judge found that legal principles including consistency, finality and the integrity of the administration of justice had all been violated. She said it was more “egregious” because the case called upon the “wisdom of the community in the form of jurors.”

The judge dismissed ICBC’s claim that bringing the abuse application in the middle of the jury trial was too late.

“This is also a surprising position for the defendant to take. Clearly the defendant and his insurer were aware of the inconsistent pleadings; but that was not shared with the plaintiff or her counsel.”

The judge declared a mistrial and said the matter will proceed to a new trial.

Gropper also granted judgment on the liability issue in favour of Glover. The issue for the new trial will be the amount of the damages.

Yawney said his client was happy that the “unfairness” between the two lawsuits had been addressed and added it was the first time he’d experienced such a case.

He said Glover has suffered continuing pain and limitations from her injuries and hasn’t been able to recover completely.

“It’s unfortunate because she had a good life, an active life and like many people that are injured, it’s fundamentally changed.”

kfraser@postmedia.com

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