Caci et al. v. MacArthur et al.; Non-Marine Underwriters, Lloyd's of London, Third Party [Indexed as: Caci v. MacArthur]
93 O.R. (3d) 701
Court of Appeal for Ontario,
Rosenberg, Borins and Gillese JJ.A.
November 7, 2008
Civil procedure -- Abuse of process -- Defendant M convicted of dangerous driving causing bodily harm following motor vehicle accident -- M's passenger bringing civil action against M and other driver D -- Trial judge ruling that conviction was conclusive of M's negligence and that facts that were essential to conviction were conclusive -- Trial judge relying on abuse of process doctrine to prohibit M and defendant insurer from adducing evidence contrary to those essential facts -- Insurer's appeal dismissed -- Trial judge properly applying abuse of process doctrine -- Trial judge's ruling not preventing M and insurer from attempting to show that D was also negligent.
C was seriously injured in a motor vehicle accident. M, the driver of the car in which C was a passenger, was convicted of dangerous driving causing bodily harm. C brought a civil action against M (who was uninsured), D (the driver of another car involved in the accident) and C's own motor vehicle insurer. The trial judge ruled that M's conviction was conclusive of his negligence and that the four [page702] facts that were essential to the conviction were conclusive. Relying on the abuse of process doctrine, the trial judge prohibited M and the insurer from adducing evidence contrary to those essential facts. The jury found M to be 100 per cent negligent and did not attribute any negligence to D. The insurer appealed.
Held, the appeal should be dismissed.
The trial judge did not err in holding that the verdict in the criminal case and the findings essential to that verdict were conclusive in the civil proceedings. To permit M or the insurer to relitigate the issue of negligence and the findings essential to that verdict would undermine the integrity of the adjudicative process. The trial judge's ruling did not preclude M and the insurer from attempting to show that D was also negligent, since that issue was not raised or determined in the criminal proceedings.
APPEAL from the judgment of D. Brown J., [2007] O.J. No. 156, 43 M.V.R. (5th) 160 (S.C.J.) for the plaintiff in a personal injury action.
Cases referred to Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC Â220-071, 17 C.R. (6th) 276, REJB 2003-49439, 59 W.C.B. (2d) 334, 120 L.A.C. (4th) 225, apld Taylor v. Baribeau (1985), 1985 3184 (ON SCDC), 51 O.R. (2d) 541, [1985] O.J. No. 2600, 21 D.L.R. (4th) 140, 12 O.A.C. 344, 4 C.P.C. (2d) 52, 35 M.V.R. 79, 32 A.C.W.S. (2d) 156 (Div. Ct.), not folld Other cases referred to Franco v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391, [2001] O.J. No. 847, 198 D.L.R. (4th) 541, 142 O.A.C. 116, 3 C.P.C. (5th) 189, 103 A.C.W.S. (3d) 944, 49 W.C.B. (2d) 322 (C.A.); H. (W.) v. A. (H.C.), 2006 27865 (ON CA), [2006] O.J. No. 3283, 272 D.L.R. (4th) 621, 219 O.A.C. 73, 31 C.P.C. (6th) 207, 150 A.C.W.S. (3d) 606 (C.A.) Statutes referred to Evidence Act, R.S.O. 1990, c. E.23, ss. 22, 22.1 Highway Traffic Act, R.S.O. 1990, c. H.8, s. 141(5)
David A. Zuber and Karim N. Hirani, for appellant Economical Mutual Insurance Co. Stuart Forbes, for respondents Ana and Harry Dorkin.
The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- In this appeal from the judgment of Brown J. and a jury, the appellant argues that the trial judge erred in his application of the doctrine of abuse of process. The defendant David MacArthur had been convicted of dangerous driving causing bodily harm by Duncan J. of the Ontario Court of Justice. In a civil action against MacArthur and others, the trial judge ruled that the conviction was conclusive of MacArthur's negligence. He also ruled that four facts that were essential to [page703] the conviction were conclusive. Relying on the abuse of process doctrine, the trial judge prohibited MacArthur and the appellant from adducing evidence contrary to these essential facts.
[2] The appellant submits that abuse of process had no application because the appellant was not attempting to relitigate MacArthur's negligence but rather to show that the other driver, Ana Dorkin, was also negligent. Ms. Dorkin's negligence had not been an issue in the criminal proceedings. The jury in the civil trial found MacArthur 100 per cent negligent and did not attribute any negligence to Ms. Dorkin.
[3] For the following reasons, I would dismiss the appeal. The Criminal Trial
[4] On July 6, 2001, David MacArthur was driving south on a major highway in the City of Brampton. He was following two other vehicles that were travelling at a high rate of speed. The plaintiff, Jerry Caci, was a passenger in MacArthur's car. Ana Dorkin was driving northbound on the highway and was stopped at an intersection to make a left turn. As she made the turn, the three vehicles entered the intersection and the MacArthur vehicle struck her vehicle. Caci was seriously injured in the resulting collision.
[5] As a result of the collision, MacArthur was charged with dangerous driving causing bodily harm. He was tried by Duncan J. of the Ontario Court of Justice and convicted. The prosecution called a number of witnesses that had seen MacArthur's driving in the minutes prior to the collision. It also called an expert in accident reconstruction who gave an opinion as to the speed of MacArthur's vehicle at the relevant time. Duncan J. accepted the evidence of the various civilian witnesses who testified to the high rate of speed at which MacArthur and the drivers of the other two vehicles were travelling. He also accepted evidence that these vehicles "came out of nowhere" an instant before the collision as Ms. Dorkin was making her turn. While Duncan J. could not quantify the speed of the MacArthur vehicle just prior to the collision, he was satisfied that MacArthur was travelling very fast and greatly in excess of the speed of the other traffic on the highway. Duncan J. rejected MacArthur's evidence that he was travelling at a normal rate of speed and not racing or pursuing the two other vehicles. The Civil Trial
[6] As a result of the accident, the plaintiff Jerry Caci and members of his family sued MacArthur and others, including Ms. Dorkin and the appellant Economical Mutual Insurance [page704] Company. At the time of the accident MacArthur was uninsured. Caci had uninsured and underinsured coverage under a policy of insurance issued by the appellant. At the ensuing jury trial, MacArthur was unrepresented, but given the commonality of interests between MacArthur and the appellant, counsel for the appellant essentially put in the case that MacArthur would have put forward. The only issue at the civil trial was whether MacArthur and Dorkin were both negligent.
[7] After jury selection, counsel for Dorkin brought a motion to be permitted to prove MacArthur's conviction for dangerous driving, as well as certain reasons of Duncan J. that explained the conviction. The trial judge granted the motion. He held that counsel for Dorkin could prove the conviction in accordance with ss. 22 and 22.1 of the Evidence Act, R.S.O. 1990, c. E.23. He also held, relying on the abuse of process doctrine as explained in the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, that neither MacArthur nor the appellant could relitigate the facts essential to the conviction. Finally, he held that counsel for Dorkin could place before the jury the facts essential to the conviction, which he summarized as follows [at para. 16]:
a. three vehicles, including Mr. MacArthur's, approached the intersection from the north "traveling greatly in excess of the posted speed" and "greatly in excess of the speed of other traffic on the road";
b. Mr. MacArthur's car was "very close to and following the second car";
c. Two of the cars were racing and Mr. MacArthur "was either racing with the other vehicles, or was in pursuit of the other vehicles";
d. Because all three cars, including Mr. MacArthur's, "were traveling at very excessive speeds", Mr. MacArthur's car, and the other two cars, "had not been close to the intersection when [Mrs. Dorkin's] turn began, but were there before it could be completed". [Citations omitted]
[8] The trial judge also held that it was not open to MacArthur or the appellant to adduce any evidence contrary to these essential facts. Analysis
[9] The appellant does not quarrel with the trial judge's decision admitting MacArthur's conviction for dangerous driving causing bodily harm. It submits, however, that the trial judge erred in his application of the abuse of process doctrine. It relies upon the decision of the Divisional Court in Taylor v. Baribeau (1985), 1985 3184 (ON SCDC), 51 O.R. (2d) 541, [1985] O.J. No. 2600 (Div. Ct.), where it was held that a criminal conviction is only prima facie proof of [page705] the defendant's negligence, that the findings of fact in support of a conviction are not admissible as evidence in the related civil proceedings, and that the doctrine of abuse of process has no application in civil proceedings.
[10] Further, the appellant submits that the abuse of process doctrine had no application because the appellant was not attempting to relitigate MacArthur's negligence, but rather show that Dorkin was also negligent, a theory not at issue in MacArthur's criminal trial. It submits that the effect of the trial judge's ruling was to preclude it and MacArthur from adducing evidence of speed of the MacArthur and Dorkin vehicles that would have demonstrated that Dorkin was at least partially responsible for the accident.
[11] Finally, the appellant, relying upon Taylor and this court's decision in Franco v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391, [2001] O.J. No. 847 (C.A.), submits that where, as here, a party attempts to use proof of a prior conviction for offensive purposes to establish liability it is only prima facie proof of negligence. It submits that it is only where the conviction is used defensively to resist a claim by a convicted party that relitigation is precluded.
[12] I can deal briefly with the decision in Taylor. Taylor was decided before the decision in C.U.P.E., where the court clarified and explained the application of the doctrine of abuse of process. To the extent that Taylor holds that the criminal conviction is only prima facie proof of negligence and that the findings of fact in support of the conviction are never admissible, it has been overtaken by C.U.P.E. and decisions of this court, especially H. (W.) v. A. (H.C.), 2006 27865 (ON CA), [2006] O.J. No. 3283, 272 D.L.R. (4th) 621 (C.A.).
[13] I am also of the view that the distinction drawn between offensive and defensive uses of the prior criminal conviction is inconsistent with C.U.P.E. Whether or not the person convicted may be precluded by the doctrine of abuse of process from contesting the underlying facts will depend on the application of the principles set out in C.U.P.E. and not simply upon whether the use is characterized as offensive or defensive. I note that this court in Franco, while referring to the line of authority that had drawn such a distinction, held, at para. 31, that it was unnecessary to consider whether the abuse of process doctrine "should be extended beyond its apparent present limits". As a result of C.U.P.E., the law of abuse of process has been explained and extended beyond the limits referred to in Franco. In particular, in C.U.P.E., Arbour J. speaking for the court, at para. 47, held that there is "no reason to constrain the doctrine of abuse of process only to those cases where the plaintiff has initiated the relitigation" (i.e., the defensive use of the doctrine). Also see the discussion of this issue at para. 49 of the C.U.P.E. decision. [page706]
[14] As explained in C.U.P.E., the abuse of process doctrine engages the court's inherent power to prevent the administration of justice from being brought into disrepute. In the context of a case such as this where the court must consider the evidentiary effect of a prior conviction, the issue is "whether relitigation would be detrimental to the adjudicative process": C.U.P.E., at para. 45.
[15] In my view, the trial judge properly applied the principles from C.U.P.E. in holding that the verdict in the criminal case and the findings essential to that verdict were conclusive in the civil proceedings. To permit MacArthur or the appellant, whose interest was identical to MacArthur, to relitigate the issue of negligence and the findings essential to that verdict would undermine the integrity of the adjudicative process. MacArthur had been found to have committed dangerous driving, an offence of negligence at least as high if not higher than civil negligence. Further, that negligence had been proved to the criminal standard of proof beyond a reasonable doubt. Finally, MacArthur had a full opportunity to defend the allegation of negligence in circumstances where he had every reason to mount a complete defence.
[16] Arbour J. identified several factors at paras. 52 and 53 of the C.U.P.E. decision where the abuse of process doctrine should not be applied, including where the earlier proceeding was tainted by fraud; where fresh, new evidence previously unavailable conclusively impeaches the earlier verdict; or when fairness dictates that the first result should not be binding in the subsequent proceedings. None of those factors applied in this case. It would have been a clear abuse of process to allow the appellant and MacArthur to relitigate the issue of MacArthur's negligence and, subject to what I say below about the fourth finding, to rebut the judicial findings of fact essential to the conviction.
[17] That said, the limits of the application of the abuse of process doctrine were reached when it came to the issue of Dorkin's negligence. Dorkin's manner of driving was not an issue in the MacArthur criminal trial; that her driving might have contributed to the collision did not affect MacArthur's criminal liability. Permitting the appellant and MacArthur to show that Dorkin was partially responsible for the collision was therefore not an abuse of process.
[18] However, the trial judge's ruling did not prevent the appellant or MacArthur from calling evidence that was relevant to the issue of Dorkin's negligence, and in fact considerable evidence was led on that issue. Dorkin herself was extensively cross-examined as to why she had not seen the three speeding vehicles. The trial judge also fairly placed the issue of Dorkin's negligence before [page707] the jury. In particular, he noted the heavy onus on Dorkin, by virtue of s. 141(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8, of showing that before commencing her left turn, she afforded MacArthur a reasonable opportunity to avoid a collision. Several references were made to this onus in the main charge and in answer to a question from the jury on this issue.
[19] The appellant's principal complaint is with the trial judge's holding that no evidence could be adduced to rebut the finding by Duncan J. that MacArthur's car and the other two vehicles with which he was either racing or pursuing were travelling at "very excessive speeds". The appellant submits that this finding was not essential to the verdict in the criminal case and undermined its attempt to show that Dorkin's own negligence contributed to the collision. I do not agree. Excessive speed was essential to the finding of dangerous driving. The trial judge's ruling did not prevent the appellant from adducing evidence about speed and indeed a great deal of evidence of speed was placed before the jury in relation to the question of Dorkin's negligence. The various civilian witnesses who had testified at the criminal trial also testified at the civil trial to their observations about the speed of the MacArthur vehicle and the other two vehicles. Finally, expert evidence of accident reconstruction, including estimates of speed at the time of the collision, was placed before the jury.
[20] I have only one concern with the trial judge's ruling, relating to the fourth finding of fact that was placed before the jury. It will be recalled that this fact was as follows [at para. 16]:
Because all three cars, including Mr. MacArthur's, "were traveling at very excessive speeds", Mr. MacArthur's car, and the other two cars, "had not been close to the intersection when [Mrs. Dorkin's] turn began, but were there before it could be completed". [Citation omitted]
[21] This finding not only related to MacArthur's negligence but might also have been seen by the jury as impacting on Dorkin's negligence. It would have been better if it had not been placed before the jury. However, the trial judge made it clear to the jury that this and the other findings were to be taken only as dispositive of MacArthur's negligence. Thus, after reciting the four findings in the charge to the jury, the trial judge said this:
As I have said, in your deliberations, you must accept those facts regarding the way in which Mr. MacArthur drove his car as binding on you. You cannot come to a different conclusion about how Mr. MacArthur drove his car.
[22] The trial judge then immediately turned to the issue of Dorkin's negligence and reminded the jury of the "very heavy [page708] onus" on a driver making a left-hand turn into the path of an approaching vehicle. In my view, neither the trial judge's ruling nor the charge to the jury undermined the defence position that Dorkin was negligent. Disposition
[23] Accordingly, I would dismiss the appeal. The respondents are entitled to their costs, fixed at $20,000 inclusive of GST and disbursements.
Appeal dismissed.