Franco et al. v. White [Indexed as: Franco v. White]

53 O.R. (3d) 391

[2001] O.J. No. 847

Docket No.: C34114

Court of Appeal for Ontario

Goudge, Borins and Sharpe JJ.A.

March 12, 2001

Civil procedure--Production of documents--Privilege --Plaintiff brought action for damages for sexual assault --Defendant brought motion for production of records relating to plaintiff's pre-assault medical history--Records not privileged--No blanket privilege for medical documents exists--Production denied as defendant failed to show that documents relevant to material issue in action and that it would be unfair to him to proceed to trial without having discovery of documents--Plaintiff had not opened her entire medical history for scrutiny by bringing action--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10.

Evidence--Admissibility--Prior criminal conviction--Defendant convicted of sexually assaulting plaintiff--Plaintiff brought action for damages for sexual assault and moved for summary judgment on issue of liability--Plaintiff filed certificate of conviction and transcript of criminal proceedings in support of motion--Defendant filed no evidence but relied on his denial of plaintiff's allegations at criminal trial as raising genuine issue for trial--Evidence of criminal conviction is admissible in subsequent civil proceedings as prima facie proof of convicted party's fault--Summary judgment will not follow automatically if defendant can show existence of genuine issue to be tried--No genuine issue for trial existed in this case --Motions judge did not err in granting summary judgment on issue of liability.

The defendant was convicted by a jury of sexually assaulting the plaintiff. The plaintiff then brought a civil action for damages for the sexual assault. She brought a motion for summary judgment on the issue of liability. In support of the motion, she filed the certificate of conviction and a transcript of the criminal proceedings, including the judge's jury charge and his reasons for sentence. The jury charge made it clear that the key issue at the trial was credibility. The defendant denied sexually assaulting the plaintiff and claimed that he and the plaintiff had consensual sex on the date of the alleged assault. The trial judge's reasons for sentence made it clear that he fully accepted the jury's rejection of the defendant's evidence. The defendant filed no evidence on the motion for summary judgment, but relied on the transcript of his own evidence at the criminal trial in which he denied the plaintiff's allegations. The defendant brought a cross-motion for production of the plaintiff's medical records. The motions judge found that in view of the conviction, there was no genuine issue for trial, and granted judgment on the issue of liability. The motions judge dismissed the defendant's motion for production of medical records on the grounds that the records were privileged and that all records relevant to liability were produced in the criminal proceedings. The defendant appealed. He conceded that the conviction was admissible against him in the civil action, but submitted that the conviction was only some evidence, and that his sworn denial of the allegations against him in the criminal proceedings gave rise to a genuine issue for trial. The motions judge initially awarded fixed costs to the plaintiff, but after further submissions, ordered the costs to be assessed. The plaintiff cross-appealed that order.

Held, the appeal and cross-appeal should be dismissed.

Criminal convictions are clearly admissible in subsequent civil proceedings. Ordinarily, a criminal conviction constitutes prima facie proof, but in some cases, the person convicted may be precluded by the doctrine of abuse of process from contesting the underlying facts. Canadian law has tended to distinguish between the "offensive" and "defensive" use of criminal convictions. Where the conviction is used offensively by the plaintiff to establish the defendant's liability, as in this case, the conviction is treated as prima facie proof, subject to rebuttal. Where the conviction is raised defensively to resist a claim by the convicted party, the courts have exercised their discretion to invoke the abuse of process doctrine to preclude relitigation. To apply the abuse of process doctrine in this case would be inconsistent with this line of authority.

The doctrine of issue estoppel precludes the relitigation of issues decided in a prior proceeding. Canadian courts, unlike American courts, have insisted on the existence of mutuality as a precondition for the application of the doctrine; that is, where one party relies on a prior determination in a subsequent proceeding, the doctrine of issue estoppel will not apply to preclude the other party from relitigating the issue unless both parties in the subsequent proceeding were also parties to the earlier proceeding. The mutuality requirement prevented the plaintiff, who was not a party to the criminal proceedings, from asserting the doctrine of issue estoppel to preclude the defendant from relitigating the issue of his responsibility for the sexual assault. The mutuality rule has been abandoned in most jurisdictions in the United States. Under the rubric of "non-mutual collateral estoppel", a finding against A in an earlier proceeding binds A in a subsequent proceeding, even if the party relying on the prior determination was not a party to the prior proceedings. Accordingly, a criminal conviction is preclusive in favour of the victim in a subsequent criminal action. While the American courts have abandoned the mutuality requirement, they have replaced it with a healthy measure of discretion to ensure that justice is done in each case. It has been pointed out that while Canadian law has adhered to the letter of the mutuality requirement, the abuse of process doctrine has often been employed to reach the same result as would obtain under non-mutual issue estoppel. A similarly ambivalent approach is reflected in the manner in which the prima facie standard is applied. The effect given to convictions on motions for summary judgment borders on issue estoppel. It would seem that the law in this area is continuing to evolve. The rules and categories are supple and take shape in light of the exigencies of the case. The absence of mutuality does not invariably preclude giving preclusive effect to a prior determ ination.

Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried. Summary judgments obtained on the strength of a criminal conviction have been refused or set aside where the conviction was vague and it was not clear whether there was a sufficient similarity between the facts giving rise to the civil claim and the facts underlying the conviction; where the defendant may have lacked adequate incentive to fully defend a relatively minor criminal charge and it would be unfair to hold the defendant to that result when facing the more serious consequences of a civil action for substantial damages; and where the convicted party had uncovered evidence not available at his criminal trial. This case did not fall within those exceptions. The issue in the civil case was identical to that tried in the criminal case. The defendant was found guilty of the offence on the criminal standard of proof after a fully contested criminal trial. He had every incentive and every opportunity to defend himself to the full extent permitted by the law. He offered nothing new at this stage. The civil trial would be a re-run of the criminal trial. His evidence was rejected by both the jury and the trial judge in preference for the evidence of the plaintiff. In these circumstances, there was no genuine issue of credibility requiring a trial. The defendant's request for production of further documents relating to the plaintiff's medical condition provided an insufficient basis for refusing summary judgment. That issue was fully litigated in the criminal proceedings. There was no genuine issue for trial, and no basis for interfering with the motions judge's determination that the plaintiff was entitled to summary judgment on the issue of liability.

Current Canadian law, through the doctrines of abuse of process and the application of the prima facie evidence standard, results in giving preclusive effect to prior determinations in many situations falling outside the rules of traditional issue estoppel. In this regard, Canadian law may be seen as paralleling the discretionary approach to offensive non-mutual issue estoppel in American law. The effect of a prior determination is not determined through an inflexible application of mechanical rules, but rather on the basis of the important underlying procedural rules, and an element of judicial discretion is applied to ensure that justice is done in each case.

The motions judge erred in concluding that the plaintiff's medical records were privileged. There was no evidence of any promise of, or need for, confidentiality. The records related to the plaintiff's pre-assault medical history, not to therapy received after the assault. To allow a claim for privilege here would amount to recognizing a blanket privilege for all medical records.

Rule 30.10 of the Rules of Civil Procedure requires the party seeking production from third parties to establish that (a) the document is relevant to a material issue in the action, and (b) it would be unfair to require the moving party to proceed to trial without having discovery of the document. At this stage of the litigation, the defendant had failed to satisfy either test. On the issue of damages, it was impossible to say on the basis of what was now before the court whether any or all of the medical records were relevant. In suing for damages, the plaintiff had not opened her entire medical history for scrutiny. It might well be that as the plaintiff's claim for damages was considered through the ordinary process of discovery, the defendant might be able to make out a case for production for some or all of the records now sought. The appropriate order was to dismiss the motion for production, without prejudice to a further application on fresh material.

There was no basis for interfering with the motions judge's costs order. There is no hard and fast rule that costs of motions be fixed, and especially where a party seeks a substantial award and a detailed review is required, the motions judge has a discretion to order that the costs be assessed.

APPEAL from an order granting a motion for summary judgment on an issue of liability and dismissing a cross-motion for an order for production of documents; CROSS-APPEAL from an order for costs.

C. (C.D.) v. Starzecki, 1995 16156 (MB QB), [1996] 2 W.W.R. 317, 44 C.P.C. (3d) 319 (Man. Q.B.); Del Core v. Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 O.R. (2d) 1, 10 O.A.C. 57, 19 D.L.R. (4th) 68 (C.A.); Demeter v. British Pacific Life Insurance Co. (1984), 1984 1996 (ON CA), 48 O.R. (2d) 266, 7 O.A.C. 143, 13 D.L.R. (4th) 318, [1985] I.L.R. 1-1862 (C.A.), affg (1983), 1983 1838 (ON SC), 43 O.R. (2d) 33, 150 D.L.R. (3d) 249, [1983] I.L.R. 1-1689, 37 C.P.C. 277 (S.C.J.); G. v. Chaykowski (1998), 1998 ABCA 348, 64 Alta. L.R. (3d) 282, [1999] 4 W.W.R. 228 (C.A.); Hollington v. F. Hewthorn & Co., [1943] 2 All E.R. 35, [1943] K.B. 587, 112 L.J.K.B. 46, 169 L.T. 21, 59 T.L.R. 321, 87 Sol. Jo. 247 (C.A.); Holt v. MacMaster (1993), 1993 7113 (AB KB), 11 Alta. L.R. (3d) 226, 18 C.P.C. (3d) 220 (Q.B.); Hunter v. Chief Constable of West Midland Police Force, [1982] A.C. 529, [1981] 3 All E.R. 727, [1981] 3 W.L.R. 906 (H.L.), affg [1980] 1 Q.B. 283, [1980] 2 All E.R. 227, [1980] 2 W.L.R. 689, 124 Sol. Jo. 83 (C.A.) (sub nom. McIlken ny v. Chief Constable of West Midland Police Force); McCauley v. Vine, [1999] W.L.R. 1997 (C.A.); Ridley v. Banshard Mutual Insurance Co., [1995] O.J. No. 1922; Simpson v. Geswein (1995), 1995 16110 (MB QB), 103 Man. R. (2d) 69, [1995] 6 W.W.R. 233, 25 C.C.L.T. (2d) 49, 38 C.P.C. (3d) 292 (Q.B.), consd M. (A.) v. Ryan, 1997 403 (SCC), [1997] 1 S.C.R. 157, 29 B.C.L.R. (3d) 133, 143 D.L.R. (4th) 1, 207 N.R. 81, [1997] 4 W.W.R. 1, 42 C.R.R. (2d) 37, 34 C.C.L.T. (2d) 1, 4 C.R. (5th) 220, 8 C.P.C. (4th) 1, distd Other cases referred to Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135, 111 D.L.R. (4th) 589, 26 C.P.C. (3d) 368 (C.A.); Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971); Bomac Construction Ltd. v. Stevenson (1986), 1986 3573 (SK CA), 48 Sask. R. 62, [1986] 5 W.W.R. 21 (C.A.); Brinks Ltd. v. Abu-Saleh, [1995] 1 W.L.R. 1478 (Ch. D.); Canadian Tire Corp. v. Summers (1995), 1995 7183 (ON SC), 23 O.R. (3d) 106 (Gen. Div.); Cook v. Ip (1985), 1985 163 (ON CA), 52 O.R. (2d) 289, 22 D.L.R. (4th) 1, 5 C.P.C. (2d) 81 (C.A.); Gosse v. House (1997), 1997 15957 (NL SC), 158 Nfld. & P.E.I.R. 31, 490 A.P.R. 31, 17 C.P.C. (4th) 33 (Nfld. T.D.); Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, 20 R.P.R. (2d) 49n (C.A.); Kuin v. 238682 Alberta Ltd. (1997), 1997 14892 (AB KB), 56 Alta. L.R. 329, 16 C.P.C. (4th) 62 (Q.B.); Minott v. O'Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321, 168 D.L.R. (4th) 270, 40 C.C.E.L. (2d) 1, 99 C.L.L.C. 210-013 (C.A.); Morse Shoe (Canada) Ltd. v. Zellers Inc. (1997), 1997 1573 (ON CA), 10 C.P.C. (4th) 390 (Ont. C.A.); Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21, 41 B.L.R. (2d) 10, 22 C.P.C. (4th) 235, 5 C.B.R. (4th) 57 (C.A.); Nigro v. Agnew-Surpass Shoe Stores Ltd. (1977), 1977 3406 (ON SC), 18 O.R. (2d) 215, 3 C.P.C. 194, 82 D.L.R. (3d) 302 (H.C.J.), affd (1978), 1976 692 (ON CA), 18 O.R. (2d) 714n, 1978 2192 (ON CA), 84 D.L.R. (3d) 256n (C.A.); Parklane Hosiery Co. v. Store, 439 U.S. 322 (1979); Q. v. Minto Management Ltd. (1984), 1984 2118 (ON SC), 46 O.R. (2d) 756, 44 C.P.C. 6 (H.C.J.); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1; R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760, 132 C.C.C. (3d) 373, 22 C.R. (5th) 56 (C.A.); Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 1994 7367 (ON SC), 22 O.R. (3d) 25 (Gen. Div.); Royal Bank of Canada v. Feldman (1995), 1995 2934 (ON CA), 27 O.R. (3d 1) 322n (C.A.), quashing (1995), 1995 7060 (ON SC), 23 O.R. (3d) 798 (Gen. Div.); Royal Bank of Canada v. McArthur (1985), 1985 2135 (ON SC), 51 O.R. (2d) 86, 10 O.A.C. 394, 19 D.L.R. (4th) 762, 3 C.P.C. (2d) 141 (Div. Ct.); Taylor v. Baribeau (1985), 1985 3184 (ON SCDC), 51 O.R. (2d) 541, 12 O.A.C. 344, 21 D.L.R. (4th) 140, 4 C.P.C. (2d) 52, 35 M.V.R. 79 (Div. Ct.); Toronto (City) v. C.U.P.E. Local 79, 2000 30193 (ON SCDC), [2000] O.J. No. 1570 (Div. Ct.), leave to appeal granted October 2, 2000 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b) Evidence Act, R.S.O. 1990, c. E.22, s. 22.1(1) [as am. S.O. 1995, c. 6, s. 6] Victims' Bill of Rights, 1995, S.O. 1995, c. 6, s. 3 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.10 Authorities referred to "Effect of Criminal or Civil Nature of Prior Judgement," 47 Am Jur 2d, Judgements 732 Herman, M., and G. Hayden, "Issue Estoppel: Mutuality of Parties Reconsidered," (1986) 64 Can. Bar Rev. 437 Lange, D., The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) McLaren, I., "Challenging Convictions in Civil Proceedings," (1999) 149 New Law Journal 6875 Sopinka, J., S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) Vella, S.M., and E.K.P. Grace, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000) Watson, G., "Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality," (1990) 69 Can. Bar Rev. 623

Loretta P. Merritt, for defendant (appellant). Diane Oleskiw, for plaintiffs (respondents).

The judgment of the court was delivered by

SHARPE J.A.:--

1. Overview

[1] Samuel Ian White ("the appellant") was convicted by a jury of sexually assaulting Kay Franco ("the respondent"). His appeal against his conviction was dismissed by this court. In this civil action, the respondent claims damages for herself and her two children arising from the same sexual assault. The respondent moved for summary judgment on the issue of liability relying on the criminal conviction. The appellant asserted that his evidence denying guilt offered at the criminal trial raises a genuine issue for trial and that summary judgment should not be granted. The motions court judge found that in view of the conviction, there was no genuine issue for trial and granted judgment on the issue of liability. The appellant's motion for extensive production of the respondent's medical records was dismissed on the grounds that they are privileged and that all records relevant to liability were produced in the criminal proceedings. Both orders are appealed to this court.

2. Facts and Procedural History

[2] The alleged sexual assault giving rise to this action took place on July 11, 1994. The appellant and the respondent had a prior consensual sexual relationship. The respondent alleges that their relationship ended and that on July 11, 1994, she was brutally assaulted by the respondent. The appellant contends that they had consensual sex on the date of the alleged assault. He denies that he had caused the plaintiff any injury.

[3] The appellant was charged with sexual assault on July 28, 1994. In April 1997, he was tried before a judge and jury. While 20 witnesses were called at the criminal trial, the key issue was the credibility of the appellant and the respondent. The respondent insisted that the appellant had sexually assaulted her. The appellant testified in his own defence and strongly denied the charge. After a three-week trial, the appellant was convicted of sexual assault and sentenced to 18 months' imprisonment. His appeal from conviction was dismissed by this court (Doherty, Moldaver and Borins JJ.A.) on February 9, 1999 (R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760, 22 C.R. (5th) 56).

[4] In this action, the plaintiff claims special, general, punitive and "aggravated and exemplary damages" for the alleged sexual assault. The statement of claim also advances claims for damages for breach of trust, negligence, and intentional infliction of mental suffering. However, on the motion for summary judgment, the respondent waived those torts and restricted her claim to one for damages arising from the alleged sexual assault. The appellant counterclaimed for general damages for defamation and punitive damages for abuse of process.

[5] Following the close of pleadings, the respondent moved for summary judgment on the issue of liability. In support of the motion, she filed the certificate of conviction and a transcript of the criminal proceedings, including the judge's jury charge and his reasons for sentence. The jury charge makes it clear that the key issue at the trial was credibility. The trial judge's rather extensive reasons for sentence make it clear that he fully accepted the jury's rejection of the appellant's evidence. Addressing himself to the appellant, the trial judge explained: "The evidence given by you and the complainant as to what . . . occurred in her residence is diametrically opposed and both versions could not be true." The trial judge then described the essential facts that he accepted as proven, namely that the appellant had forced anal and vaginal sex on the respondent and that he had caused bruises to various parts of her body.

[6] The appellant filed no evidence on the motion for summary judgment, but relied on the transcript of his own evidence at the criminal trial in which he denied the respondent's allegations.

[7] An important issue in the criminal proceedings, and the central issue on the appellant's appeal from conviction, was the production of third party records relating to medical treatment and counselling received by the respondent prior to the alleged sexual assault. The appellant obtained production of records from the Alcohol and Drug Assessment Services related to counselling received by the respondent at around the time of the alleged assault. In the discharge summary, a social worker noted: "diagnosed with Munchausen Syndrome". The social worker was not competent to make such a diagnosis and there was nothing to indicate when, where, or by whom it had been made, if indeed anyone had ever made it.

[8] The appellant brought a further motion for production of psychiatric, medical and hospital records from 1979 to the date of trial. In support of that motion, he led evidence to the effect that there was some indication that the respondent had admitted inflicting pain on herself and that Munchausen Syndrome was a recognized psychiatric disorder that had the following symptoms: fabrication, self-infliction, exaggeration or exacerbation of medical ailments or conditions, dramatization of medical history, vagueness and inconsistencies with respect to specific ailments, uncontrollable pathological lying with respect to history and symptoms, complaints of pain and requests for analgesics.

[9] At the time of the appellant's pre-trial motion, disclosure of third party records was governed by R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 33 C.R.R. (2d) 1. Following the two-step procedure mandated by that decision, the trial judge found that the appellant had satisfied the test of showing that the records contained information "likely to be relevant" to an issue at trial. He directed production of the records pertaining to the respondent's psychiatric care from 1990 to April 1995. The trial judge concluded that the appellant had failed to show that any other records met the "likely to be relevant" standard. The trial judge then examined the records and ordered that the appellant be given a summary and copies of some parts of the records. The appellant made no further request for production after receiving this material. On the appeal of his conviction to this court, the appellant argued that the trial judge should have found that the "likely to be relevant" standard had been met with respect to all of the records. Doherty J.A., writing for the court, rejected that submission. Noting that the "likely to be relevant" standard was not a high one, Doherty J.A. found at p. 773 O.R.:

. . . there is precious little to indicate that this complainant had any psychiatric problem which could have any relevance to an issue in the trial. The evidence suggesting that the complainant suffered from Munchausen Syndrome was so thin as to be almost non-existent. There is certainly no evidence that she ever received treatment for the Syndrome. The single, unsourced and unexplained reference in a social worker's notes to that diagnosis is a slender reed upon which to build a case for disclosure, even to a judge, of some 17 years of medical and psychiatric records.

Doherty J.A. went on to observe that the trial judge had been "obviously sensitive to the appellant's right to make full answer and defence. I think he stretched the concept of 'likely relevance' as far as it would go in deciding to examine 5 years of the complainant's psychiatric records based solely on the reference in the social worker's notes."

[10] When the matter came before the motions court judge, the respondent asked for the following relief:

1. summary judgment on the issue of liability;

2. summary judgment dismissing the counterclaim;

3. in the alternative, an order striking out the statement of defence and counterclaim as an abuse of process; and

4. an order directing that the defendant not attend the examination for discovery of the appellant.

[11] The appellant moved for an order for production of the third party medical records and other treatment and counselling records pursuant to rule 30.10 of the [Rules of Civil Procedure R.R.O. 1990, Reg. 194]. The appellant was, in effect, seeking production of the entire medical history of the respondent. The third party doctors and others from whom production is sought were apparently served, but they did not attend to oppose the motion. In the material filed in support of the motion, it is suggested that the medical records are sought in support of the appellant's contention that he did not sexually assault the respondent. In argument before this court, greater emphasis was placed on the relevance of these records to the issue of the damages claimed by the respondent.

[12] The motions court judge allowed the respondent's motion for summary judgment. She found that there was "a very high degree of identity" in the facts and issues in the criminal and civil proceedings. The motions court judge found that the criminal conviction was admissible as prima facie proof of the facts upon which the conviction is based, but that it was not conclusive. However, as the appellant had put nothing before the court to rebut the prima facie evidence of his liability for sexual assault, the motions court judge concluded that the respondent was entitled to summary judgment on liability.

[13] The motions court judge dismissed the appellant's cross- motion for production of third party medical records. She accepted the respondent's argument that the medical records relating to her psychiatric records were either irrelevant, as determined in the criminal proceedings, or privileged under the four-part "Wigmore" test, as applied in M. (A.) v. Ryan, 1997 403 (SCC), [1997] 1 S.C.R. 157, 29 B.C.L.R. (3d) 133.

[14] The motions court judge ruled that the counterclaim should be struck out. The abuse of process claim was predicated upon a claim for malicious prosecution. As the appellant had been convicted, that claim necessarily failed. The alleged defamation was based upon the allegations contained in the statement of claim and those statements were privileged.

[15] Finally, the motions court judge ruled that the defendant should not be permitted to attend the examinations for discovery of the respondent and the infant plaintiffs.

[16] The motions court judge initially awarded fixed costs to the respondent, but after further submissions, ordered the costs to be assessed.

[17] The appellant appeals the orders allowing the motion for summary judgment on liability, dismissing the motion for production of third party records, and restricting him from attending the examinations for discovery of the respondent and the infant plaintiffs.

[18] The respondent seeks leave to cross-appeal the costs order, and if leave be granted, asks this court to substitute an order for solicitor-client costs to be fixed and made payable forthwith.

3. Issues

1. Does the appellant's criminal conviction provide an adequate basis for summary judgment on the issue of liability?

2. Are the respondent's medical records privileged?

3. If the records are not privileged, is the appellant entitled to an order for production?

4. Is the order relating to the appellant's attendance at discovery interlocutory in nature?

5. Is there any basis for this court to interfere with the motions court judge's costs order?

4. Analysis

Issue 1: Does the appellant's criminal conviction provide an adequate basis for summary judgment on the issue of liability?

[19] The law relating to the use of criminal convictions in subsequent civil actions has been the subject of considerable debate and controversy. At one time, under the now discredited English common law rule laid down in Hollington v. F. Hewthorn & Co., [1943] K.B. 587, [1943] 2 All E.R. 35 (C.A.), a criminal conviction could not even be admitted into evidence in a subsequent civil proceeding. At the other extreme, the prevailing common law rule in the United States is that in a subsequent civil proceeding based upon the same wrong, a criminal conviction has preclusive effect. The current Canadian position, perhaps characteristically, lies somewhere in between. Criminal convictions are admissible in subsequent civil proceedings. Ordinarily, a criminal conviction constitutes prima facie proof, but in some cases, the person convicted may be precluded by the doctrine of abuse of process from contesting the underlying facts.

[20] In the present case, the appellant seeks to challenge the facts underlying his conviction. The issue is what weight should be attached to the conviction where it is relied on in support of a motion for summary judgment. To resolve the issue, it will be helpful to review the general principles applicable to the use of criminal convictions in subsequent civil proceedings.

(i) Admissibility of criminal convictions in subsequent civil proceedings

[21] There is no doubt about the admissibility of a criminal conviction [See Note 1 at end of document] in subsequent civil proceedings. The matter is dealt with by the Evidence Act, R.S.O. 1990, c. E.22, s. 22.1, as amended by S.O. 1995, c. 6, s. 6:

22.1(1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,

(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or

b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.

[22] This provision, however, does not specify the evidentiary effect of the conviction where the convicted party seeks to challenge the facts underlying the criminal offence in the subsequent civil proceeding. The appellant concedes that the conviction is admissible against him in the civil action. He submits, however, that the conviction is only some evidence, and that his sworn denial of the allegations against him in the criminal proceedings gives rise to a genuine issue for trial, especially as the dispute essentially boils down to a credibility contest between him and the respondent.

(ii) Convictions as prima facie evidence

[23] In Del Core v. Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 O.R. (2d) 1, 10 O.A.C. 57, this court held that a prior criminal conviction was admissible against a pharmacist as prima facie evidence of wrongdoing in a disciplinary proceeding before the College of Pharmacists. Houlden J.A. (dissenting in the result but not on this point) and Blair J.A. explicitly rejected the proposition advanced by Finlayson J.A. that the conviction amounted to conclusive proof of the facts underlying the criminal conviction. As Blair J.A. explained at p. 22 O.R.: "The law of Ontario is only now emerging from the long shadow cast over it by the decision in Hollington v. Hewthorn" that excluded evidence of convictions. In Blair J.A.'s view, it would have been extraordinary to go from the extreme of exclusion directly to the other extreme of preclusion and the court refused to make the leap. As Blair J.A. explained, it "would be highly undesirable to replace [the] arbitrary rule [in Holling ton v. Hewthorn] by prescribing equally rigid rules to replace it". Blair J.A. stressed the need to maintain a flexible standard to meet the "varying circumstances of particular cases". Blair J.A., at pp. 21-22 O.R., explained this further:

I agree with my brother Houlden that such evidence constitutes prima facie and not conclusive proof of the fact of guilt in civil proceedings. The prior conviction must of course be relevant to the subsequent proceedings. Its weight and significance will depend on the circumstances of each case. The rationale for this rule of evidence is expounded by the Court of Appeal of New Zealand in Jorgensen v. News Media (Auckland) Ltd., [1969] N.Z.L.R. 961, where, after a careful review of the authorities, it concluded that the rule in Hollington v. Hewthorn did not extend to New Zealand. After holding that a certificate of conviction was conclusive evidence of that conviction, North P. stated at p. 980:

[P]roof of . . . conviction . . . while not conclusive of . . . guilt, is evidence admissible in proof of the fact of guilt. Whether such evidence discharges the evidentiary burden of proof at any stage of the trial will be for the Court to decide on the evidence tendered.

Since evidence of prior convictions affords only prima facie proof of guilt it follows that its effect may be countered in a variety of ways. For example, the conviction may be challenged or its effect mitigated by explanation of the circumstances surrounding the conviction. It is both unnecessary and imprudent to attempt any exhaustive enumeration.

[24] The prima facie standard has been consistently applied where the criminal conviction is used offensively by the injured party to establish the fault of the party convicted. See Demeter v. British Pacific Life Insurance Co. (1983), 1983 1838 (ON SC), 43 O.R. (2d) 33, 150 D.L.R. (3d) 249 (S.C.J.) at p. 48, affd (1984), 1984 1996 (ON CA), 48 O.R. (2d) 266, 13 D.L.R. (4th) 318 (C.A.); Taylor v. Baribeau (1985), 1985 3184 (ON SCDC), 51 O.R. (2d) 541, 21 D.L.R. (4th) 140 (Div. Ct.); Royal Bank of Canada v. McArthur (1985), 1985 2135 (ON SC), 51 O.R. (2d) 86, 19 D.L.R. (4th) 762 (Div. Ct.); Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at pp. 1119-20.

(iii) Convictions having preclusive effect: abuse of process

[25] There is, however, another line of authority under the doctrine of abuse of process that gives convictions preclusive effect. This originated with the decision of the House of Lords in Hunter v. Chief Constable of West Midland Police Force, [1981] 3 All E.R. 727, [1982] A.C. 529. The plaintiffs had been convicted of murder. A key issue at the criminal trial was the voluntariness of their alleged confessions. The plaintiffs commenced civil actions against the police for assault based on the same allegations they had made during the criminal trial to challenge the admissibility of the confessions. The House of Lords, at p. 541 A.C. per Lord Diplock, held that where there has been a final decision made by a criminal court against the plaintiff, it is an abuse of process for the plaintiff in the civil action to initiate a collateral attack on the decision:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court in which it was made.

[26] The leading Canadian case on abuse of process in this context is Demeter v. British Pacific Life Insurance Co., supra. The plaintiff, having been convicted of murdering his wife, sued to collect on three insurance policies on his wife's life naming him as beneficiary. Osler J. held that the plaintiff's attempt to relitigate the issue of whether or not he had murdered his wife was an abuse of process of the court. At p. 51 O.R., Osler J. held:

In view of the solemn verdict of the jury, properly charged with respect to the burden of proof, the fact that proof must be beyond a reasonable doubt, and the identity of the issue before the jury with the issue in the present actions, it would be an affront to one's sense of justice and would be regarded as an outrage by the reasonable layman to let these actions go forward. In the exercise of the court's inherent jurisdiction they will each be dismissed with costs.

[27] This court affirmed the decision of Osler J. ((1984), 1984 1996 (ON CA), 48 O.R. (2d) 266) on the ground that the appellant was seeking to relitigate the very issue that was decided against him in his criminal trial and that he should be precluded from doing so by the doctrine of abuse of process. MacKinnon A.C.J.O. explained, at p. 268:

. . . the use of a civil action to initiate a collateral attack on a final decision of a criminal court of competent jurisdiction in an attempt to relitigate an issue already tried, is an abuse of the process of the court.

[28] In both Hunter v. Chief Constable and Demeter, emphasis was placed on the improper motive of the plaintiff using civil proceedings to mount a collateral attack on the conviction. In other contexts, however, the abuse of process doctrine has been applied to preclude relitigation of an issue in circumstances where it would be difficult to discern an improper motive: see e.g. Nigro v. Agnew-Surpass Shoe Stores Ltd. (1977), 1977 3406 (ON SC), 18 O.R. (2d) 215 (H.C.J.), appeal on other grounds dismissed (1978), 1976 692 (ON CA), 18 O.R. (2d) 714n (C.A.); Bomac Construction Ltd. v. Stevenson (1986), 1986 3573 (SK CA), 48 Sask. R. 62, [1986] 5 W.W.R. 21 (C.A.).

[29] Canadian law has tended to distinguish between the "offensive" and "defensive" use of criminal convictions. Where the conviction is used offensively by the plaintiff to establish the defendant's liability, as in the present case, the conviction is treated as prima facie proof, subject to rebuttal. It is where the conviction is raised defensively to resist a claim by the convicted party, as in Hunter and Demeter, that the courts have exercised their discretion to invoke the abuse of process doctrine to preclude relitigation. The distinction between offensive and defensive use of prior convictions has been mentioned frequently in the case law and is expressed as a "doctrine" by Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at p. 400. In Del Core, at p. 18, Houlden J.A. stated "The abuse of process doctrine does not apply in this case because Mr. Del Core is not the notional plaintiff who initiated the proceeding, he is the de fendant." In Q. v. Minto Management Ltd. (1984), 1984 2118 (ON SC), 46 O.R. (2d) 756, 44 C.P.C. 6 (H.C.J.), the plaintiff sued a man who had been convicted of raping her, as well as the management company of her apartment building that employed him as a maintenance man. The plaintiff sought an order preventing the defendants from introducing new evidence not before the criminal court. Steele J. explained, at p. 760 O.R., the rationale for refusing preclusive effect and according the conviction only prima facie value:

Where a convicted criminal, as a plaintiff, brings a civil action, it may be an abuse of the process of the court. Where the victim brings the action against the convicted criminal, nothing stops the defendant from raising the defence that he did not do it. The conviction is not conclusive but is prima facie evidence that the defendant may rebut. He may or may not give evidence at trial and the plaintiff should not have to reprove the entire offence in the first instance. However, the plaintiff must prove the extent of her injuries and prove her damages. She will be subject to cross-examination. To totally tie the hands of the defendants would be unfair.

[30] The English cases appear to follow a similar pattern: see Ian McLaren, "Challenging Convictions in Civil Proceedings," (1999) 149 New Law Journal 6875; commenting on McCauley v. Vine, [1999] W.L.R. 1997 (C.A.).

[31] To apply the abuse of process doctrine in the present case would be inconsistent with this line of authority. As I have concluded that the judgment should be upheld on other grounds, it is unnecessary for me to consider whether abuse of process should be extended beyond its apparent present limits to apply to cases such as this.

(iv) Issue estoppel

[32] The doctrine of issue estoppel precludes the relitigation of issues decided in a prior proceeding. The first three requirements for issue estoppel are not controversial: (1) there must be an identity of issues in the prior and subsequent litigation; (2) the issue must have been actually litigated and decided in the prior proceeding and its resolution was necessary to the result; and (3) the decision must have been final. The fourth requirement has been the matter of some debate. It has been held in English and Canadian law that where one party relies on a prior determination in a subsequent proceeding, the doctrine of issue estoppel will not apply to preclude the other party from relitigating the issue unless both parties in the subsequent proceeding were also parties to the earlier proceeding. This is known as the "mutuality" requirement: see Hunter v. Chief Constable, supra, at pp. 540-41 A.C., expressly disagreeing with Denning L.J.'s adoption of non-mutual issue estoppel in the Court of Appeal (sub nom. McIlkenny v. Chief Constable of West Midlands Police Force, [1980] 1 Q.B. 283).

[33] The mutuality requirement must be considered in the circumstances of this case. The appellant has had his day in court on the issue of his liability for the sexual assault, but the respondent was not a party to that proceeding. The mutuality requirement prevents the respondent from asserting the doctrine of issue estoppel to preclude the appellant from relitigating the issue of his responsibility for the sexual assault.

[34] The mutuality requirement has been the subject of considerable criticism by legal scholars from the time of Bentham to the present day: see Michael Herman and Gerald Hayden, "Issue Estoppel: Mutuality of Parties Reconsidered," (1986) 64 Can. Bar Rev. 437 and Garry Watson, "Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality," (1990) 69 Can. Bar Rev. 623, referring to Bentham's criticism of the rule at p. 629. It is apparent why the law should insist that A will only be bound by a determination to which A was a party. It would be obviously unfair to hold A bound by a prior determination if A was not party in the prior proceeding as A's rights would be determined without affording A his or her day in court. However, the "day in court" principle does not always justify the mutuality rule. Why, in a proceeding between A and B, should A not be bound by a prior determination to which A was a party, simply because B was not? A has had his day in court on the issue and the demands of procedural fairness have been satisfied.

[35] Herman and Hayden argue, supra at p. 460, that prior findings ought to be accorded preclusive effect if raised against a party to the prior proceedings:

If the identical issue has been finally determined against a party in the first proceeding, there is no rationale for allowing that party in the subsequent proceeding to challenge the finding and lead rebuttal evidence; to allow this would be to effectively undermine the entire purpose of the doctrine of issue estoppel, which is meant to avoid multiplicity of proceedings and disentitle parties from relitigating matters already decided against them.

[36] Watson, supra, also favours the abandonment of mutuality. At pp. 658-59, he uses an example bearing a striking similarity to the facts of the present case in arguing that criminal convictions ought to have preclusive effect:

. . . in some cases involving the use of prior criminal convictions in subsequent civil actions, non-mutual preclusion will be quite appropriate, for example, after a fully contested rape trial where the accused was vigorously represented and faced a substantial period of imprisonment, and was convicted. If the convicted person is subsequently sued for damages for assault, a court should normally conclude that such an accused had a full and fair opportunity to defend. The conditions for non-mutual preclusion will have been met and issue estoppel should apply to the exclusion of giving the previous conviction effect as prima facie evidence subject to rebuttal.

[37] The mutuality rule has been abandoned in most jurisdictions in the United States. Under the rubric of "non- mutual collateral estoppel", a finding against A in an earlier proceeding binds A in a subsequent proceeding, even if the party relying on the prior determination was not a party to the prior proceedings. Accordingly, a criminal conviction is preclusive in favour of the victim in a subsequent civil action. The higher standard of proof required in criminal cases and the strong incentive for a criminal accused to vigorously defend prosecutions have been cited as justification for giving prior convictions collateral estoppel effect: See for example "Effect of Criminal or Civil Nature of Prior Judgement", 47 Am Jur 2d, Judgements 732.

[38] The leading American case on non-mutual collateral estoppel is the decision of the United States Supreme Court in Parklane Hosiery Co. v. Store, 439 U.S. 322 (1979). In Parklane, Stewart J. confirmed the earlier United States Supreme Court decision in Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971). Justice Stewart held at p. 649:

By failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception.

Stewart J. went on to state the principle enunciated in Blonder-Tongue at p. 650:

In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent that the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative uses -- productive or otherwise -- to relitigation of a decided issue.

[39] It is important to note, however, that while the American courts have abandoned the mutuality requirement, they have replaced it with a healthy measure of discretion to ensure that justice is done in each case. Stewart J. held at p. 651 that mutuality should not be required even for offensive collateral estoppel, but recognizing that there were situations [where] offensive use of a prior determination could work an injustice, reserved a discretion to trial judges to refuse to allow it:

We have concluded that the preferable approach for dealing with these problems in the federal court is not to preclude the use of offensive collateral estoppel, but to grant trial courts the broad discretion to determine when it should be applied.

[40] The mutuality rule prevails in Canada: Lange, supra, at pp. 58-63. In Canadian Tire Corp. v. Summers (1995), 1995 7183 (ON SC), 23 O.R. (3d) 106 (Gen. Div.), a case dealing with the offensive use of a criminal conviction in a subsequent civil action, the American non-mutual issue estoppel doctrine was explicitly rejected. In Minott v. O'Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321 at pp. 339-40, 168 D.L.R. (4th) 270 (C.A.), Laskin J.A. rejected non-mutual issue estoppel in the employment law context.

[41] Watson argues at p. 624 that while the Canadian law has adhered to the letter of the mutuality requirement, the abuse of process doctrine has often been employed to reach the same result as would obtain under non-mutual issue estoppel. He states that "while clinging to the notion that issue estoppel still requires mutuality [Canadian courts] have in fact killed it". There are several instances where courts in Ontario and in other provinces have applied the abuse of process doctrine to achieve precisely the result that would flow from non-mutual issue estoppel: see Watson at pp. 648-52, referring, inter alia, to Nigro v. Agnew-Surpass Shoe Stores Ltd., supra; Bomac Construction Ltd. v. Stevenson, supra. I note as well that in Toronto (City) v. C.U.P.E. Local 79, 2000 30193 (ON SCDC), [2000] O.J. No. 1570 (Div. Ct.) (leave to appeal granted October 2, 2000), both issue estoppel and abuse of process were applied to preclude an employee from challenging crimi nal convictions in a grievance arbitration challenging termination from employment.

[42] A similarly ambivalent approach is reflected by the manner in which the prima facie evidence standard is applied. As I will explain below, the effect given to convictions on motions for summary judgment borders on issue estoppel. Donald Lange, supra at p. 399, describes a kind of sliding scale approach to the weight attached to prima facie evidence:

In Canada, the doctrine that applies to the admissibility of a conviction in a civil proceeding is that the conviction is prima facie evidence. Prima facie evidence is the starting-point. Behind the doctrine is the probative value, or weight, to be given to the prima facie evidence in the civil proceeding. In some circumstances, the prima facie evidence will be persuasive evidence of the criminal finding. In other circumstances, the prima facie evidence will be conclusive evidence of the criminal finding. As the prima facie evidence transforms itself into weighty probative evidence in a civil proceeding, the doctrine of prima facie evidence, in essence, transforms itself into an application of the doctrines of issue estoppel and cause of action estoppel.

[43] Similarly, in Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000), at p. 326, Vella and Grace address the weight of the conviction in a civil proceeding and the type of evidence necessary to rebut the prima facie standard:

In order to successfully rebut the presumption of wrongdoing which flows from the admission into evidence of a prior criminal conviction, some explanation must be proffered which is "capable of diminishing its otherwise overwhelming force" [referring to Re Charlton (1968), 1968 477 (ON CA), 3 D.L.R. (3d) 623 at p. 626 (Ont. C.A.)]. For example, evidence may be called "in mitigation or by way of excuse for the offence" [referring to Del Core per Finlayson J.A. at p. 76 and Blair J.A. at pp. 88-89]. Thus, a defendant will be allowed to adduce evidence and make arguments which dispute the accuracy of the criminal court's finding against him or her, or to explain the circumstances surrounding the conviction, in order to try and mitigate the negative impact of the conviction.

[44] Vella and Grace list a number of means available to mitigate or avoid the effect of the conviction in a civil proceeding. These include (1) adducing new evidence mentioned not available at the criminal trial; (2) showing that the issues are different; and (3) showing that there was some lack of fairness or effective representation in the prior proceedings. The authors conclude at p. 327, however, referring to the summary judgment cases discussed below, that:

It is noteworthy that efforts to rebut the presumption of guilt or mitigate the effects of a prior conviction have generally not met with success in the sexual abuse context.

[45] It would seem that the law in this area is continuing to evolve as it slowly emerges from what Blair J.A. described as "the shadow of Hollington v. Hewthorn". The rules and categories are supple and take shape in light of the exigencies of the case. The absence of mutuality does not invariably preclude giving preclusive effect to a prior determination.

(v) Summary judgment

[46] Courts in other provinces have frequently granted summary judgment on the strength of a prior criminal conviction for the conduct that gives rise to the civil claim. In Simpson v. Geswein (1995), 1995 16110 (MB QB), 103 Man. R. (2d) 69, 38 C.P.C. (3d) 292 (Q.B.), the defendant had been convicted of assaulting the plaintiff with a weapon. The plaintiff brought a civil action for damages arising out of the same incident and moved for summary judgment, relying on the certificate of conviction and a transcript of the reasons for conviction at the criminal trial. The defendant filed an affidavit denying the attack and alleging self-defence. Krindle J. dismissed an appeal from the Master granting summary judgment. Krindle J., at p. 301 C.P.C., accepted that the certificate of conviction was not conclusive, but rather amounted to "strong prima facie proof" of the underlying facts. She found, however, at p. 304 C.P.C., that the defendant had failed to show that there was any evidence to cast doubt on the proposition t hat he had assaulted the plaintiff and that the Master had correctly granted summary judgment:

The pertinent evidence was called before Oliphant A.C.J.Q.B. [the trial judge in the criminal trial]. Having regard to the verdict rendered by him, properly charging himself with respect to the burden of proof, the fact that proof of the assault must be beyond a reasonable doubt and that self- defence must be negatived beyond a reasonable doubt and the identity of the issue before the criminal court with the present action, it would be an affront to one's sense of justice and would be regarded as an outrage by the reasonable layman to let this action be contested on the issue of liability. [See Demeter v. British Pacific Life Insurance Co, supra, at p. 51]

[47] Similarly, in C. (C.D.) v. Starzecki, 1995 16156 (MB QB), [1996] 2 W.W.R. 317, 44 C.P.C. (3d) 319 (Man. Q.B.) the defendant doctor had been convicted by a jury of sexually assaulting the plaintiff. In a subsequent civil action for breach of fiduciary duty, the doctor advanced the same defence that had been rejected at the criminal trial, namely, that he had given the plaintiff bona fide medical treatment. The plaintiff moved for summary judgment on the issue of liability. The doctor filed no evidence in support of his defence. Duval J. granted summary judgment stating, at p. 320 C.P.C., that there was no genuine issue for trial:

If the defendant wished to advance a defence that his actions constituted bona fide medical treatment, then considering the certificate of conviction which has been filed, as well as the other evidence put forward by the plaintiff, it was incumbent on the defendant to establish that this constituted a genuine issue for trial. The identical defence was considered by the jury and the only reasonable inference which can be drawn from a conviction for sexual assault is that this defence was not accepted by the jury.

[48] In Holt v. MacMaster (1993), 1993 7113 (AB KB), 11 Alta. L.R. (3d) 226, 18 C.P.C. (3d) 220 (Q.B.), the plaintiff moved for summary judgment on the issue of liability in an action for an assault that occurred in the course of an amateur hockey match. Affidavits were filed with details of the assault. On cross- examination, the defendant admitted that he had been criminally convicted of assault arising from the same circumstances. The Master granted summary judgment in favour of the plaintiff, and the appeal from the Master's decision was dismissed by Hunt J. who explained as follows at p. 226 C.P.C.:

The issues in this action, as to liability, are identical to the issues in the criminal proceeding. Given the conviction after a criminal trial, the identity of the questions to be determined and the lighter burden of proof here, there remain no real questions of law or fact to be determined. To permit this case to go [to] trial on the question of liability would fly in the face of reason and good sense.

It should be added that, in my view, the granting of summary judgment on the facts of this case does not detract from the position that a conviction (other than in a defamation case) is not to be treated as "conclusive evidence". Rather, what I am deciding is that where the facts and the issues are identical and the defendant's evidence, by his own admission, will be essentially what it was before the judge hearing the criminal case, very heavy weight should be attached to a conviction after a trial.

Similar reasoning was applied in Gosse v. House (1997), 1997 15957 (NL SC), 158 Nfld. & P.E.I.R. 31, 17 C.P.C. (4th) 33 (Nfld. T.D.) and in Kuin v. 238682 Alberta Ltd. (1997), 1997 14892 (AB KB), 56 Alta. L.R. 329, 16 C.P.C. (4th) 62 (Q.B.). In Brinks Ltd. v. Abu-Saleh, [1995] 1 W.L.R. 1478 (Ch. D.) summary judgment was awarded on the strength of a criminal conviction. Jacob J. held that issue in the civil proceeding was identical to that decided in the criminal trial and that to justify a trial, the defendants had "to show at least that new evidence not called at the criminal trial will be called at the civil trial".

[49] Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried. In G. v. Chaykowski (1998), 1998 ABCA 348, 64 Alta. L.R. (3d) 282, [1999] 4 W.W.R. 228 (C.A.), a summary judgment obtained on the strength of a criminal conviction was set aside on appeal on the basis that the convictions were vague and that it was not clear whether there was a sufficient similarity between the facts giving rise to the civil claim and the facts underlying the conviction. Similarly, in McCauley v. Vine, supra, the English Court of Appeal set aside a summary judgment in a motor vehicle action granted on the strength of a conviction for dangerous driving. It was noted that the defendant may have lacked adequate incentive to fully defend a relatively minor quasi-criminal charge, and that it would be unfair to hold the defendant to that result when facing the more serious consequences of a civil action for substantial damages. In Ridley v. Banshard Mutual Insurance Co., [1995] O.J. No. 1922, summary judgment was refused where the convicted party had uncovered evidence not available at his criminal trial.

[50] The present case does not fall within these exceptions. The issue in the civil case is identical to that tried in the criminal case. The appellant was found guilty of the offence on the criminal standard of proof after a fully contested jury trial. He had every incentive and every opportunity to defend himself to the full extent permitted by law. The appellant offers nothing new at this stage. In his defence to the civil action, he relies solely on the evidence he gave at the criminal trial. The civil trial would be a re-run of the criminal trial. The plaintiff would only have to satisfy the civil balance of probabilities standard.

[51] While the case is one of credibility, one cannot ignore the prior determination. The appellant's evidence was rejected by both the jury and the trial judge in preference for the evidence of the respondent. In these circumstances, there is no genuine issue of credibility requiring a trial. The case falls within the principle stated by Morden J.A. in Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 at p. 552, 83 D.L.R. (4th) 734 (C.A.): "credibility precludes the granting of summary judgment . . . only when what is said to be an issue of credibility is a genuine issue of credibility." The same proposition was stated by Borins J. in Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 1994 7367 (ON SC), 22 O.R. (3d) 25 (Gen. Div.) at p. 29: "Although the defendant may have raised an issue of credibility, it is far removed from constituting a genuine issue of credibility. Therefore, the plaintiff has established that there is no genuine issue for trial in this case." See also Royal Bank of Cana da v. Feldman (1995), 1995 7060 (ON SC), 23 O.R. (3d) 798 (Gen. Div.), appeal quashed (1995), 1995 8962 (ON CA), 27 O.R. (3d) 322n (C.A.).

[52] In my view, the appellant's request for production of further documents relating to the respondent's medical condition provides an insufficient basis for refusing summary judgment. As I have already noted, that issue was fully litigated at the criminal trial and on appeal to this court. Indeed, before us, the argument in favour of production was premised essentially on the need to explore the respondent's medical past in order to properly assess her claim for damages. In M. (A.) v. Ryan, supra, at p. 179 S.C.R., the Supreme Court of Canada explicitly found that the interest in disclosure of medical records is less compelling in the context of a civil action for damages than in a criminal trial:

The defendant in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty. As a consequence, the balance between the interest in disclosure and the complainant's interest in privacy may be struck at a different level in the civil and criminal case; documents produced in a criminal case may not always be producible in a civil case, where the privacy interest of the complainant may more easily outweigh the defendant's interest in production.

[53] I return below to the production issue insofar as it relates to damages. With respect to the issue of liability, I am satisfied that, in light of the prior determination in the criminal proceedings and in the absence of anything new in the civil action, the appellant's request for production does not raise a genuine issue for trial.

[54] In these circumstances, I am satisfied that there is no genuine issue for trial and that there is no basis for this court to interfere with the motion court judge's determination that the respondent is entitled to summary judgment on the issue of liability. I agree with Krindle J. in Simpson v. Geswein that "it would be an affront to one's sense of justice and would be regarded as an outrage by the reasonable layman to let this action be contested on the issue of liability" and with Hunt J. in Holt v. MacMaster that to "permit this case to go trial on the question of liability would fly in the face of reason and good sense".

[55] I acknowledge that granting summary judgment on the strength of the prior conviction comes very close to giving the conviction preclusive effect despite the absence of mutuality. I would point out, however, that there is an important difference between this robust approach to the prima facie standard and a strict or rigid application of issue estoppel. The prima facie standard affords a convicted party the opportunity to explain why the conviction should not be taken as proof of the underlying facts. If there is a good explanation, the matter may proceed to trial. The issue raised in the civil action may not be precisely the same as that determined in the criminal proceedings. There may be new evidence not adduced at the criminal trial. If the criminal charge was of a minor nature, the convicted party may not have had an adequate incentive to defend and it would be unfair to prevent the convicted party from defending the civil suit. However, where the convicted party offers no explanation and simply puts forth the same evidence that was rejected and seeks to relitigate precisely the same issue, I see no merit in allowing the matter to proceed to trial. The party has had a full and fair opportunity to litigate the issue and the interest of finality prevails.

[56] Current Canadian law, through the doctrines of abuse of process and the application of the prima facie evidence standard, results in giving preclusive effect to prior determinations in many situations falling outside the rules of traditional issue estoppel. In this regard, Canadian law may be seen as paralleling the discretionary approach to offensive non-mutual issue estoppel in American law. The effect of a prior determination is not determined through an inflexible application of mechanical rules but rather on the basis of the important underlying procedural values, and an element of judicial discretion is applied to ensure that justice is done in each case.

Issue 2: Are the respondent's medical records privileged?

[57] I respectfully disagree with the conclusion of the motions court judge that the respondent's medical records are privileged. In my view, the circumstances of the present case are readily distinguishable from M. (A.) v. Ryan, supra. Ryan also involved a claim for damages for sexual assault. After the alleged assaults, the plaintiff sought counselling from a psychiatrist. The plaintiff was concerned that her communications remain confidential and before undergoing treatment, obtained the psychiatrist's assurance of confidentiality. The defendant sought production of the notes and records of the plaintiff's psychiatrist containing statements made by the plaintiff in the course of treatment.

[58] The Supreme Court of Canada affirmed the order of the British Columbia Court of Appeal granting partial privilege and imposing strict terms for the documents that were disclosed. The privilege claim was based on the four-part "Wigmore" test, explained at p. 171 S.C.R. by McLachlin J. in the following terms:

First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be "sedulously fostered" in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[59] The Supreme Court explicitly rejected a "blanket privilege" approach and found that a careful, case-by-case consideration of the issue of privilege was required. Noting that the common law test had to be interpreted and applied in a manner consonant with the law's increasing concern with the wrong of sexual abuse, McLachlin J. found that the plaintiff satisfied the first three requirements. The plaintiff had obtained an explicit assurance of confidentiality, and the psychiatrist attested to the need for confidentiality for effective therapy. As for the public good standard, McLachlin noted at p. 174 S.C.R.: "Victims of sexual abuse often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely accepted that it is in the interests of the victim and society that such help be obtained." With respect to the fourth step, the balance between protecting the confidence and getting at the truth, at pp. 175-76 S.C.R. McLachlin again referred to [the] law's concern for victims of s exual abuse:

The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. . . . [The victim] is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress -- redress which in some cases may be part of her program of therapy.

[60] However, the Supreme Court did not disagree with the conclusion of the British Columbia Court of Appeal that the interest of getting at the truth, especially in relation to damages and causation, justified partial disclosure under strict terms.

[61] In my view, the record in the present case falls well short of being adequate to sustain a claim for privilege. Unlike the situation in Ryan, there is no evidence of the promise of, or the need for, confidentiality. The records relate to the respondent's pre-assault medical history, not to therapy she received after the assault. To allow a claim for privilege here would amount to recognizing a blanket privilege for all medical records, a proposition rejected in Ryan and rejected by this court in Cook v. Ip (1985), 1985 163 (ON CA), 52 O.R. (2d) 289, 22 D.L.R. (4th) 1 (C.A.). Unlike Ryan, this is not a case where the privacy claim of the victim of a sexual assault arises from her need for treatment for the harm suffered as a result of the assault. The concerns expressed by the Supreme Court in that regard are simply not applicable to the facts of this case.

[62] Accordingly, I would reject the submission that all the respondent's medical records are privileged.

Issue 3: If the records are not privileged, is the appellant entitled to an order for production?

[63] The absence of privilege does not necessarily result in an order for production. A party does not have an unrestricted right to open-ended production of documents in the possession of third parties. "Fishing expeditions" are not permitted and orders for production of documents should not be made as a matter of course: Morse Shoe (Canada) Ltd. v. Zellers Inc. (1997), 1997 1573 (ON CA), 10 C.P.C. (4th) 390 (Ont. C.A.). Rule 30.10 requires the party seeking production from third parties to establish that

30.10(1)

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[64] In my view, at this stage of the litigation, the appellant has failed to satisfy either test. I have already dealt with the issue of relevance on the question of liability and concluded that there is nothing to suggest that a more pervasive order should be made in this action than was made in the criminal trial. With respect to damages, it is simply impossible to say on the basis of what is now before the court whether any or all of the medical records are relevant. The proposition advanced by the appellant is essentially that by suing for damages, the respondent opened for scrutiny her entire medical history. I cannot agree. As stated by McLachlin J. in Ryan at p. 180 S.C.R., "I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation."

[65] However, nor do I consider it appropriate at this stage to attempt to determine once and for all that the appellant has no right to production of medical records in the hands of third parties. It may well be that as the respondent's claim for damages is considered through the ordinary process of discovery, the appellant will be able to make out a case for production for some or all of the records now sought. In my view, the appropriate order is to dismiss the appellant's motion for production, without prejudice to a further application on fresh material.

Issue 4: Is the order relating to the appellant's attendance at discovery interlocutory in nature?

[66] In my view, the order relating to the appellant's attendance at the discovery of the respondent and her children was plainly interlocutory in nature and, pursuant to the Courts of Justice Act [R.S.O. 1990, c. C.43], s. 19(1)(b), the appropriate route of appeal is with leave to the Divisional Court. Accordingly, I would dismiss that aspect of the appeal as falling outside the jurisdiction of this court.

Issue 5: Is there any basis for this court to interfere with the motions court judge's costs order?

[67] The respondent seeks leave to cross-appeal the motion court judge's costs order. The respondent submits that the motions court judge erred in refusing to fix the costs of the motion and in failing to order that the costs be payable forthwith. The motions court judge had originally fixed the costs at $1,500. The respondent made written submissions asking for a significantly more substantial award. The motions court judge rescinded her earlier order and ordered that the costs be assessed.

[68] I am not persuaded that there is any basis for this court to interfere with the manner in which the motions court judge exercised her discretion with respect to costs. As has been repeatedly held, this court will only interfere with the exercise of discretion in relation to costs where the judge making the order proceeded on some erroneous principle: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135, 111 D.L.R. (4th) 589 (C.A.). There is no hard and fast rule that costs of motions be fixed, and especially where a party seeks a substantial award and a detailed review is required, the motions court judge has a discretion to order that the costs be assessed: Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21 (C.A.). Similarly, it is for the motions court judge to determine whether or not the costs should be payable forthwith.

[69] As I see no issue of principle, I would refuse the respondent's request for leave to appeal the costs order.

5. Conclusion

[70] For these reasons, I would dismiss both the appeal and the cross-appeal with costs. I would vary para. 5 of the order, dismissing the appellant's cross-motion for third party production, by adding "without prejudice to the right of the defendant to move for production on fresh material".

Appeal and cross-appeal dismissed.

Notes

Note 1: The Victims' Bill of Rights, 1995, S.O. 1995, c. 6, s. 3 provides:

3(1) A person convicted of a prescribed crime is liable in damages to every victim of the crime for emotional distress, and bodily harm resulting from the distress, arising from the commission of the crime.

By s. 3(2), victims of, inter alia, sexual assault, are presumed to have suffered emotional distress. This statute is not pleaded and was not relied on in argument before us and accordingly it is unnecessary to consider its effect.