Court File and Parties
CITATION: Samuels v. Attorney General (Canada), 2016 ONSC 7937
DIVISIONAL COURT FILE NO.: 426-16 DATE: 20161216
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
ANDRIE SAMUELS, D’ANDRIE SAMUELS, STACY-ANN SAMUELS, TAHLIA SAMUELS, TATTIYANA SAMUELS, TAYIA SAMUELS and KARONE JOHNSON Plaintiffs (Appellants)
– and –
ATTORNEY GENERAL OF CANADA, GOVERNMENT OF CANADA (DEPT. OF JUSTICE) and ROGERS GROUP OF COMPANIES Defendants (Respondents)
Counsel:
Andrie Samuels et al. the Plaintiffs (Appellants) on their own behalf
Susan Jane Bennett for the Defendants (Respondents) Attorney General of Canada
Benjamin M. Bathgate and Samantha Gordon for Defendants (Respondents) Rogers Group of Companies
Erin Pleet Amicus Curiae
HEARD at Toronto: in writing
Reasons for Judgment
DAMBROT J.:
[1] This is a motion for leave to appeal a decision of Diamond J. dated March 23, 2016, staying a civil proceeding pending the final disposition of criminal proceedings against Andrie Samuels, one of the three moving parties.
Background
[2] The moving parties are each detained in custody: Andrie Samuels in the Toronto South Detention Centre; Karone Johnson in the Northeast Ohio Correctional Center in Youngstown, Ohio; and Stacy-Ann Samuels in the Allegany County Jail in Belmont, New York. They were all accused of criminal offences involving the distribution, exportation from the United States and importation into Canada of substantial quantities of methamphetamine. Johnson was arrested in possession of 2.38 kilograms of methamphetamine in New York State on March 20, 2014. Stacy-Anne Samuels was arrested in New York State in April 2014. Andrie Samuels evaded arrest until July 23, 2015.
[3] During January 2014, as part of the investigation culminating in these arrests, the R.C.M.P. intercepted the private communications of Andrie and Stacy-Anne Samuels and others pursuant to a judicial authorization. Evidence obtained as a result of the interceptions forms part of the prosecution evidence in each of their cases. Johnson and Stacy-Anne Samuels have both pleaded guilty, and are awaiting sentencing hearings. Andrie Samuels is awaiting trial.
[4] The moving parties commenced two civil actions against the defendants in December 2014 and January 2015, alleging negligence, invasion of privacy, abuse of process, false and misleading evidence, fabricated evidence, defamation, conspiracy to injure the plaintiffs, fraud, misrepresentation and various breaches of the Charter of Rights and Freedoms. At the heart of their claims is the allegation that the authorization was obtained by fraud.
[5] The actions were commenced after the arrests of Johnson and Stacy-Anne Samuels but before the arrest of Andrie Samuels. However at the time of the commencement of the action, Andrie Samuels was well-aware that he would be arrested in relation to this matter.
[6] On March 23, 2016, on the motion of the Attorney General of Canada and Rogers Communications Canada Inc. (the correct name of the respondent Rogers Group of companies), Diamond J. struck part of the claim and stayed the balance of it pending the disposition of the criminal proceedings against Andrie Samuels.
[7] The motions judge noted:
This Claim (now consolidated from two prior actions) is being advanced by Andrie, Stacy and Karone and the minor Samuels plaintiffs for various causes of actions all arising from what the plaintiffs allege were “illegal wiretaps” obtained by the defendants which led to the criminal charges against the plaintiffs.
[8] With this in mind, he declined the request to strike the claim on the basis that it was not properly pleaded, but instead entered a stay. He explained his reasons for the stay in brief compass:
Accordingly, I find that the proper result is to stay the balance of the plaintiffs' claims (i.e. this proceeding after the striking out of the claims by Stacy and Karone for negligent investigation) pending the disposition of the criminal proceedings against Andrie. The parties to the criminal proceedings are identical to those in this proceeding (save for the inclusion of Rogers). The finding of the lawfulness or unlawfulness of the wiretaps will be of great significance to the determination of this proceeding. As such I believe a stay is warranted.
[9] The moving parties formed an intention to seek leave to appeal the order of Diamond J. to the Divisional Court, but did not do so within time. As a result, on the motion of the moving parties, Molloy J. extended the time to bring a motion for leave to appeal (2016 ONSC 6706).
[10] In her reasons, Molloy J. expressed the view that it was “at least arguable that the plaintiffs can meet the test [for leave to appeal] in Rule 62.02(4)(b).”
[11] Molloy J. noted that in Schreiber v. Canada (Attorney General) (2001), 2001 20859 (ON CA), 153 O.A.C. 137, 160 C.C.C. (3d) 131 (C.A.), Carthy J.A. (for the majority) held that the threshold test for granting a stay of a civil action pending resolution of criminal charges is “a high one, requiring the demonstration of extraordinary or exceptional circumstances.” The court went on to say that the grounds upon which the Attorney General was seeking a stay in that case were that the same facts and law would be considered in each proceeding, that if there is an extradition the claim for damages will have little merit, and that multiplicity of proceedings and inconsistent findings can be avoided if a stay is granted, were insufficient to meet the test.
[12] Molloy J. observed that Schreiber was not brought to the attention of the motions judge, and that he did not refer to the presumption against a stay, nor to the requirement of exceptional or extraordinary circumstances before a stay can be granted.
Test for Leave to Appeal
[13] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted. Rule 62.04(a) can have no application here. There are no decisions conflicting with the decision of the motion judge. This motion falls to be determined on the basis of Rule 62.02(4)(b).
[14] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R.(3d) 282 (Gen. Div. per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).
Analysis
[15] I begin with the question whether there is reason to doubt the correctness of the order in question. In this respect, the motion for leave to appeal raises the same grounds as were considered by Molloy J. I will say immediately that after giving the matter careful consideration, I am not troubled by the fact that Schreiber was not brought to the attention of the motions judge, and that he did not refer to the presumption against a stay, nor to the requirement of exceptional or extraordinary circumstances before a stay can be granted.
[16] I recognize that the fact that the motion judge referred neither to the presumption against a stay, nor to the requirement of exceptional or extraordinary circumstances before a stay can be granted, and was not made aware of the decision in Schreiber, a case that articulates those principles, could give rise to a concern that he may not have applied the correct test. But those principles did not originate in Schreiber. They are found in a long line of cases. What was no doubt not told to Molloy J. was the fact that although Schreiber was not before the motion judge, Nash v. Ontario [also referred to as Falloncrest Financial Corporation v. Ontario] (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) was before him.
[17] Falloncrest adopted what had been said in several earlier cases: the threshold test before a civil claim is stayed pending the conclusion of a related criminal prosecution is high, and extraordinary or exceptional circumstances to justify the stay must be shown. Schreiber explicitly adopted what was said in Falloncrest. Moreover these propositions were explicitly stated and discussed at least in Rogers’ factum before the motions judge. As a result, I harbour no concern that the motion judge was unaware of the test for a stay, and am satisfied that he applied that test in reaching his conclusion.
[18] I consider next whether there is reason to doubt the correctness of the merits of the decision. I acknowledge that the motion judge’s reasons for granting the stay are brief. But in my view, they are to the point, and there is in fact no reason to doubt the correctness of the decision. There are several considerations that make the circumstances in support of a stay exceptional. I will mention two.
[19] The first consideration relates to the nature of the fundamental issue in contention: the lawfulness of an authorization to intercept private. There is a well-developed procedure for reviewing the lawfulness of such an authorization, parts of which are not available in a civil proceeding, to the plaintiff’s disadvantage. There is good reason not to waste the resources of the Superior Court to undertake the complex task of reviewing, and the Crown to undertake the complex task of defending an authorization in two parallel proceedings at the same time. Indeed there was evidence before the motion judge that the actions of the moving parties in the civil case are interfering with the orderly conduct of the criminal proceeding. As the motion judge correctly said, the finding of the lawfulness or unlawfulness of the wiretaps in the criminal proceeding will be of great significance to the determination of the civil proceeding.
[20] The second consideration relates to the extent of the overlap between the criminal and civil proceedings. Again, the fundamental issue in the civil claim is the lawfulness of an authorization to intercept private communications. That is precisely in issue in the criminal proceeding. Unlike in Schreiber, this is not a case where it could be said that the same facts and law would be considered in both the criminal and civil case. This is a case where the fundamental issue in the civil proceeding is identical to a key issue in the criminal case. The civil action is the reciprocal of the criminal prosecution.
[21] This distinction was critical in Falloncrest. At page 17, the Court stated:
In our opinion, neither Nash v. Ontario nor Nash v. CIBC Trust Corp. involve circumstances so extraordinary or exceptional as to warrant the stays of these actions. The Nash appellants and CIBC Trust are not parties in the pending criminal proceedings and the issues involved in these two actions are quite distinct from those the criminal charges raise. Falloncrest Financial Corp. v. Ontario, on the other hand, is different. The Falloncrest appellants’ allegations are such that their civil claims would have little merit if the Crown successfully convicts the Fallons and DoCouto. The civil action is the reciprocal of the criminal prosecution. Furthermore, the Falloncrest appellants’ motivation for instituting their action against the Crown, shortly after their committal for trial, is suspect. The appearance is that their objective in maintaining the civil action is to interfere with the criminal process and to have pre-trial access to Crown witnesses beyond that afforded on the preliminary hearing. We would not interfere with the exercise of the trial judge's discretion in this instance where he stayed these civil proceedings until the conclusion of the prosecutions.
[22] The moving parties’ civil claim here bears the same relationship to a criminal case as did the claim of the Falloncrest plaintiffs.
[23] As a result, I see no basis to doubt the correctness of the motion judge’s decision. There is no need for me to go on to determine whether the proposed appeal involves matters of such importance that leave to appeal should be granted.
Disposition
[24] The motion for leave is denied. Rogers seeks costs from the moving parties in the amount of $8,697.35, and the Attorney general seeks costs in the amount of $8,271.78. I award costs against the moving parties to Rogers and the Attorney General in the amount of $5,000 each.
[25] Finally, I wish to express my gratitude to Ms. Pleet, who filed an excellent factum as amicus. I am particularly indebted to her because it would have been a most difficult task for me to fully comprehend the position of the moving parties on these complex issues from their hand-written material without her assistance.
DAMBROT J.
RELEASED: December 16, 2016
CITATION: Samuels v. Attorney General (Canada), 2016 ONSC 7937
DIVISIONAL COURT FILE NO.: 426-16 DATE: 20161216
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
ANDRIE SAMUELS, D’ANDRIE SAMUELS, STACY-ANN SAMUELS, TAHLIA SAMUELS, TATTIYANA SAMUELS, TAYIA SAMUELS and KARONE JOHNSON Plaintiffs (Appellants)
– and –
ATTORNEY GENERAL OF CANADA, GOVERNMENT OF CANADA (DEPT. OF JUSTICE) and ROGERS GROUP OF COMPANIES Defendants (Respondents)
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: December 16, 2016