Hanna and Hanna, personally, by their Litigation Guardian Douglas Hanna v. Abbott [Indexed as: Hanna v. Abbott]
82 O.R. (3d) 215
Court of Appeal for Ontario,
Gillese, Blair and LaForme JJ.A.
August 15, 2006
Abuse of process -- Plaintiff suing her father for damages based on childhood sexual abuse -- Defendant having been convicted of sexual offences based on same alleged behaviour -- Defendant filing as fresh evidence on appeal from conviction affidavits of defendant's sons stating that they and not defendant had sexually assaulted plaintiff -- That evidence being adduced in support of incompetence of trial counsel and not as stand-alone ground -- Appeal from conviction being dismissed -- Defendant not pleading in statement of defence that sexual abuse was committed by his sons -- Defendant raising that issue for first time in civil proceedings after plaintiff had closed her case -- Trial judge erring in admitting testimony of sons and in ordering statement of defence amended to conform to that testimony -- Doctrine of abuse of process precluding defendant from contesting underlying facts of his conviction. [page216]
Civil procedure -- Evidence -- Criminal conviction -- Plaintiff suing her father for damages based on childhood sexual abuse -- Defendant having been convicted of sexual offences based on same alleged behaviour -- Defendant filing as fresh evidence on appeal from conviction affidavits of defendant's sons stating that they and not defendant had sexually assaulted plaintiff -- That evidence being adduced in support of incompetence of trial counsel and not as stand-alone ground -- Appeal from conviction being dismissed -- Defendant not pleading in statement of defence that sexual abuse was committed by his sons -- Defendant raising that issue for first time in civil proceedings after plaintiff had closed her case -- Trial judge erring in admitting testimony of sons and in ordering statement of defence amended to conform to that testimony -- Doctrine of abuse of process precluding defendant from contesting underlying facts of his conviction.
The plaintiff brought an action against her father for damages for repeated sexual assaults allegedly committed on her by the defendant when she was a child. The defendant had been convicted of sexual offences based on the same underlying conduct. He did not testify at the criminal trial and no defence witnesses were called on his behalf. On appeal from conviction, affidavits of the defendant's two sons were filed as "fresh evidence" in support of an argument that defence counsel at trial was incompetent. The affidavits stated that the sons, and not the defendant, sexually assaulted the plaintiff. The appeal was dismissed. In the civil action, the defendant did not plead that the sexual abuse was committed by his sons. He simply stated that he did not commit the assaults and put the plaintiff to the strict proof of these allegations. He did not deliver an affidavit of documents. He admitted the conviction in response to a Request to Admit. No discoveries were held. After the plaintiff closed her case at trial, the defendant alleged for the first time that his sons had perpetrated the abuse. He called the sons, who testified that they had had sex with the plaintiff when she was a child. Their evidence had not been disclosed to the plaintiff at any prior stage of the action. Criminal defence counsel had known before the criminal trial that one of the sons claimed to have committed the abuse but that fact had not been disclosed to the plaintiff. While she was aware that the defendant had appealed his conviction, she was unaware of the nature of the "fresh evidence". The civil trial judge found that he was entitled to disregard the criminal trial findings because he had heard different evidence. He found the plaintiff not to be credible, held that the two sons, and not the defendant, had had sexual intercourse with her, and dismissed the action. The plaintiff appealed.
Held, the appeal should be allowed.
Criminal convictions are admissible in subsequent civil proceedings and a criminal conviction ordinarily constitutes prima facie, but not conclusive, proof of the fact of guilt. However, in some cases, the doctrine of abuse of process may preclude the person convicted from contesting the underlying facts. A litigant may mitigate or avoid the effect of a prior conviction in a civil proceeding by: (i) adducing new evidence not available at the criminal trial; (ii) showing that the issues are different; and (iii) showing that there was some lack of fairness or effective representation in the prior proceedings. None of those examples applied in this case. The evidence of the defendant's sons was not fresh evidence which was unavailable at the criminal trial. The trial judge wrongly believed that because the defendant chose not to testify at his criminal trial, or call the evidence of at least the son who at that point claimed to have sexually assaulted the plaintiff, the test for rehearing the matter was satisfied because [page217] it was evidence "not adduced" at the criminal trial. The test to be applied is not whether there is evidence that was available and simply not adduced at the criminal trial; rather, it is whether or not there is fresh evidence that was not available at the criminal trial. The defendant had a full and fair opportunity to litigate the issue at the criminal trial with the very same evidence he adduced at the civil trial. He elected, with the assistance of competent counsel, not to do so. Re-litigation of this case should not have occurred. The trial judge should not have considered any of the defendant's evidence, including that of his sons, on the issue of liability. Liability was proven upon the defendant's agreement that his criminal convictions were prima facie evidence of the underlying facts.
APPEAL by plaintiff from a judgment of Weekes J. of the Superior Court of Justice, dated November 24, 2004, dismissing an action.
Cases referred to F. (K.) v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391, [2001] O.J. No. 847, 198 D.L.R. (4th) 541, 3 C.P.C. (5th) 189 (C.A.) (sub nom. Franco v. White); Toronto (City) v. Canadian Union of Public Employees, Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 311 N.R. 201, 2003 SCC 63, 17 C.R. (6th) 276, affg 2001 24114 (ON CA), [2001] O.J. No. 3239, 55 O.R. (3d) 541, 45 C.R. (5th) 354, 205 D.L.R. (4th) 280, 149 O.A.C. 213 (C.A.), consd Other cases referred to Canam Enterprises Inc. v. Coles, 2002 SCC 63, [2002] 3 S.C.R. 307, [2002] S.C.J. No. 64, 61 O.R. (3d) 416n, 220 D.L.R. (4th) 466, 296 N.R. 257, 2002 SCC 63, 24 C.P.C. (5th) 1, revg (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J. No. 4607, 194 D.L.R. (4th) 648, 5 C.P.C. (5th) 218 (C.A.); Novartis Pharmaceuticals Canada Inc. v. RhoxalPharma Inc., [2002] F.C.J. No. 1006, 2002 FCT 742, 20 C.P.R. (4th) 485, 115 A.C.W.S. (3d) 414 (T.D.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Authorities referred to Grace, Elizabeth K.P., and Susan M. Vella, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000)
Christopher Morrison and David Morin, for appellant Wendy Hanna. Gil I. Fischler and Ian R. Smith, for respondent.
The judgment of the court was delivered by
[1] LAFORME J.A.: -- This appeal raises the issue of the extent to which a defendant in a civil case is entitled to attack the basis of his prior criminal conviction founded on the same circumstances as those alleged in the civil case. The appellant relies upon the doctrine of abuse of process to argue that the respondent is precluded from pursuing such a defence. [page218]
Overview
[2] The appellant, Wendy Hanna appeals the dismissal of her action against her father, Harry Charles Abbott Jr. ("Mr. Abbott"). The civil action was in relation to repeated sexual assaults on the appellant when she was a young girl. The allegations arise from the same events for which Mr. Abbott had previously been convicted in 1995.
[3] Mr. Abbott did not testify at his criminal trial and no defence witnesses were called on his behalf. He was convicted of four counts relating to the sexual assaults on the appellant. Mr. Abbott appealed and filed "fresh evidence" with the Court of Appeal. The appeal was dismissed in 1998.
[4] The civil action came on for trial in 2004, and the convictions against Mr. Abbott were filed. At the outset, the appellant's counsel took the position that liability was not a summary issue and that the convictions were prima facie evidence of the underlying facts, which Mr. Abbott could rebut.
[5] During the course of the trial, Mr. Abbott elicited evidence from his two sons who each testified it was they, and not Mr. Abbott, who had assaulted the appellant. Mr. Abbott had not pleaded the facts underpinning the sons' testimony and their evidence had been part of the "fresh evidence" that had been filed with the Court of Appeal.
[6] Mr. Abbott was not represented at trial. The trial judge allowed the testimony of the two sons despite the fact that their allegations were not pleaded, and ordered the Statement of Defence amended, on his own motion, to conform to the testimony. He found that the conduct of Mr. Abbott did not constitute an abuse of process, and he found no negative effect on Mr. Abbott's position arising from the evidence in the Court of Appeal file. The trial judge then found against the appellant.
Background
[7] At this time I propose to set out the background of this case in general terms. Later in these reasons I will refer to specific facts and circumstances that are relevant to the issue being considered.
[8] Mr. Abbott was charged in 1993 with a number of sexual offences involving his daughter, the appellant. The offences were alleged to have commenced in 1972 to 1973, when she was four to five years of age, and continued until 1980, when she was 12. The appellant disclosed the abuse to her mother in 1981 and reported it to the police in 1985. [page219]
[9] For reasons that have nothing to do with the appellant, Mr. Abbott was not charged with any offences until 1993. He was then charged with eight sexually-related offences in connection with the abuse, including indecent assault, gross indecency, incest and having sexual intercourse with a female person not his wife and who was under the age of 14. The matter came on for trial in 1995, and Mr. Abbott was found guilty in respect of six of the eight counts. Due to the Kienapple principle, a guilty verdict was recorded in respect of only four of the counts.
[10] Mr. Abbott appealed, in part, on the basis of "fresh evidence", although it seems this ground of appeal was not pursued in argument before the Court of Appeal. The fresh evidence appears to have been relied upon only in respect of an allegation concerning the competency of counsel. The appeal was dismissed.
[11] The fresh evidence included allegations from the appellant's two brothers, Ken and Rick. It consisted, in part, of a written statement from Rick, prior to the criminal trial, to Mr. Abbott's counsel that he and his brother had "played house" with the appellant when they were kids and that there was "penitration of the virgina (sic)". At the time of the alleged occurrences, Ken would have been six to seven and Rick would have been eight to nine years of age.
[12] Although the appellant was aware that Mr. Abbott had been convicted and had unsuccessfully appealed the conviction, she was not aware of the contents of the Court of Appeal file, and the documentary evidence filed before the Court of Appeal was not produced in the pre-trial proceedings.
The Civil Trial
[13] This action was commenced by Statement of Claim on November 16, 1999. Although self-represented at trial, Mr. Abbott was represented by counsel throughout most of the interlocutory proceedings. As noted, his Statement of Defence did not allege any version of events other than the fact that he did not perform the sexual assaults as alleged. Mr. Abbott did not deliver an Affidavit of Documents. He admitted the convictions in response to a Request to Admit that was filed.
[14] No discoveries were held. Because Mr. Abbott had been convicted of the sexual assaults and had not pleaded any material facts attacking the conviction, the appellant's trial counsel felt it unnecessary to conduct an examination for discovery of Mr. Abbott. Additionally, given the fact that Mr. Abbott was representing himself, it was deemed preferable to forego discoveries [page220] rather than give him the opportunity to directly examine his daughter in person.
[15] The action came on for trial in October and November of 2004. The appellant provided evidence about the assaults themselves and how they affected her. Her mother gave evidence as to the appellant's apparent emotional state and her development since her childhood. After the appellant closed her case, Mr. Abbott, for the first time, alleged that her pre- pubescent brothers had perpetrated the sexual abuse suffered by the appellant.
[16] Mr. Abbott then called his two sons, Ken and Rick, who each testified that they had sex with the appellant when she was a child, and which they suggested may have accounted for her hymen being torn or broken as discovered in a medical examination conducted after the appellant disclosed the abuse in 1981. Their evidence, and their statements given during the criminal matter and on the appeal, had not been disclosed to the appellant at any prior stage of the action. In addition, Mr. Abbott elicited evidence that it was her grandfather, and not himself, who had sexually abused the appellant. None of these assertions had been pleaded.
[17] When Mr. Abbott first attempted to elicit this evidence, the appellant's trial counsel objected, noting among other things that this allegation had not been pleaded. The trial judge ruled that Mr. Abbott was entitled to call the evidence and that the pleading would be considered amended in accordance with the evidence provided.
[18] Following the completion of the evidence, during the course of the oral argument, discussion between counsel and the trial judge ensued regarding the availability of the same evidence prior to the hearing before the Court of Appeal. The court then requested the appellant's trial counsel to obtain the file of the Court of Appeal.
[19] The substantive portion of the Court of Appeal's file was obtained by the appellant's trial counsel and filed with the court. When presented with the Court of Appeal evidence, the trial judge ruled that it was open to him to retry the case in any event.
[20] The trial judge commenced his reasons by noting that his decision was "anomalous" given that the criminal trial concluded that, beyond a reasonable doubt, Mr. Abbott had sexually abused the appellant. Nonetheless, the trial judge concluded he was entitled to disregard the criminal trial findings because he heard different evidence. He relied on the decision of Sharpe J.A. in F. (K.) v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391, [2001] O.J. No. 847 (C.A.) and [page221] concluded that the evidence contained in the Court of Appeal file did not affect his decision. He noted that neither Rick nor Ken had been previously cross-examined on this evidence.
[21] In the end, the trial judge found that the appellant was not a credible witness and held that Ken and Rick had had sexual intercourse with the appellant and not Mr. Abbott. For the reasons that follow, I am of the view that the appeal must be allowed.
Analysis
[22] Under Canadian law, criminal convictions are admissible in subsequent civil proceedings and a criminal conviction ordinarily constitutes prima facie -- not conclusive -- proof of the fact of guilt. However, in some cases the doctrine of abuse of process may preclude the person convicted from contesting the underlying facts: F. (K.) v. White, supra, at para. 19.
[23] I would note that in this case, F. (K.) v. White is the law that was relied upon and it appears that there was no reference to, or consideration of, the more recent Supreme Court of Canada decision in Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64 ("CUPE"). While I believe F. (K.) v. White is generally consistent with the CUPE decision, had CUPE been before the court, it is doubtful that this trial would have proceeded as it did.
[24] Nevertheless, at the outset of this trial, the appellant's counsel elected not to move for summary judgment and submitted that the trial judge should retry liability. Counsel agreed that it was open to the trial judge to arrive at an opposite conclusion than the judge in the criminal trial. In the result, Mr. Abbott was found to have successfully contested the underlying facts of his prior criminal convictions.
[25] Evidence was adduced in the trial that the trial judge found successfully rebutted the prima facie proof of the facts underlying the convictions. The appellant now asserts that the use of that evidence to challenge the convictions was in error as it constituted an abuse of process. On that basis, Mr. Abbott should have been prohibited from contesting the underlying facts of the convictions.
[26] Mr. Abbott agrees that his criminal convictions are prima facie evidence, which in the circumstances of this case might be persuasive evidence of the criminal findings; however, he asserts they are not conclusive evidence. Therefore, he says the trial judge in this case was not in error and had to consider all the evidence in deciding what weight to give the convictions. [page222]
[27] In my view, this is a case where the doctrine of abuse of process ought to have precluded Mr. Abbott from contesting the underlying facts of his conviction. As I will demonstrate, it was an error for the trial judge to have proceeded as he did since it amounted to a relitigation of the criminal trial, which in my view brought about a different result and undermined the credibility of the judicial process.
Abuse of process
[28] In cases such as this one, abuse of process "engages the inherent power of the court to prevent the misuse of its procedure in a way that would . . . bring the administration of justice into disrepute": see Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J. No. 4607 (C.A.), at para. 55, Goudge J.A. dissenting, revd 2002 SCC 63, [2002] 3 S.C.R. 307, [2002] S.C.J. No. 64. The Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees, Local 79 ("CUPE"), supra, characterized the doctrine of abuse of process as follows at para. 43:
In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of the courts. Whether it serves to disentitle the Crown from proceeding because of undue delays . . . , or whether it prevents a civil party from using the courts for an improper purpose . . . the focus is less on the interests of the parties and more on the integrity of judicial decision making as a branch of the administration of justice.
[29] The doctrine of abuse of process, therefore, concerns itself with the integrity of the judicial system and not with the motive or status of the parties. As was observed in CUPE, the reason for that focus is that there is no assumption that relitigation will result in a more accurate result. A similar result will, among other things, prove to have been a waste of judicial resources, whereas a different result will undermine the credibility of the judicial process. Justice Arbour in CUPE concluded at para. 52 that:
[F]rom the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and effectiveness of the adjudicative process as a whole.
[30] Justice Arbour gives three examples of where relitigation will enhance, rather than impeach, the integrity of the judicial system:
(1) When the first proceeding is tainted by fraud or dishonesty; [page223]
(2) When fresh, new evidence, previously unavailable conclusively impeaches the original results; or
(3) When fairness dictates that the original result should not be binding in the new context.
[31] I accept that the examples given by Arbour J. may not reflect an exhaustive list of situations where relitigation will not amount to an abuse of process. Indeed, I am satisfied that the doctrine of abuse of process ought to generally be a flexible doctrine whose aim is to protect litigants from abusive, vexatious or frivolous proceedings or otherwise prevent a miscarriage of justice. Its application will depend on the circumstances, facts and context of a given case: Novartis Pharmaceuticals Canada Inc. v. RhoxalPharma Inc., 2002 FCT 742, [2002] F.C.J. No. 1006, 20 C.P.R. (4th) 485 (T.D.).
[32] All the same, the CUPE examples provide guidance on the nature, scope and context of that which is necessary to allow for relitigation. Similarly, in Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000), at p. 326, Vella and Grace list examples of the means by which a litigant may mitigate or avoid the effect of a prior conviction in a civil proceeding. Justice Sharpe in F. (K.) v. White, at para. 44, referred with approval to these examples, namely: (i) adducing new evidence not available at the criminal trial; (ii) showing that the issues are different; and (iii) showing that there was some lack of fairness or effective representation in the prior proceedings.
[33] None of these examples apply here.
Application to this case
[34] In order to fully understand the error in this case, it will be necessary to provide more details on the various parts of the trial where this issue was considered. Unfortunately, as will be seen, this experienced trial judge made his decisions in this regard in circumstances that were less than ideal. The appellant's trial counsel offered only limited assistance to the trial judge and Mr. Abbott, in part because he was not a lawyer, provided none.
[35] It is true that through her counsel, the appellant expressly declined to move for summary judgment on the issue of liability and evidence was elicited at trial that challenged the criminal court findings. However, it is important to note that counsel did so in circumstances that included: (i) Mr. Abbott's admission of the prior convictions; (ii) an absence of any knowledge of the [page224] Court of Appeal's consideration of Ken and Rick's evidence, or indeed what that evidence was; and (iii) a Statement of Defence that merely denied liability and "put the plaintiff to the strict proof".
[36] Mr. Abbott did provide counsel with a witness list on September 28, 2004, that included Ken and Rick; however, there was no indication of what their evidence would be. Moreover, as I note further below, by the time counsel was aware he could have moved for summary judgment, the trial judge had made it clear that he would not have granted it at that stage of the trial (i.e., after the appellant had closed her case).
Close of appellant's evidence
[37] At the close of the appellant's evidence on the second day of trial, her counsel brought the case of F. (K.) v. White to the attention of the trial judge. The trial judge noted his familiarity with that decision and agreed that it stands for the principle that, in certain circumstances, a finding of guilt is conclusive in subsequent civil proceedings. It was at this time that the trial judge made it clear to counsel that he would not have granted summary judgment at this stage of the trial.
[38] Because Mr. Abbott at this time indicated his intention to call his sons, Ken and Rick, as witnesses, counsel sought a ruling that their evidence was not admissible. Counsel argued that their evidence was not called in the criminal trial and those facts were not pleaded in the civil trial. Moreover, Mr. Abbott had not questioned the appellant in relation to Ken and Rick and what their evidence might be during his cross- examination of her.
[39] The trial judge held that pursuant to F. (K.) v. White, and because the evidence was not called in the criminal trial, he "had to hear it". In hearing this evidence the trial judge, in my view, engaged in proceedings that had the effect of undermining the credibility of the judicial process.
[40] The evidence of Ken and Rick was not "fresh, new evidence, previously unavailable", nor was it "new evidence not available at the criminal trial" (see CUPE, at para. 52). On the contrary, their evidence was exactly the same as it had been when it was available at the criminal trial and on the appeal. As discussed below, once the trial judge obtained the Court of Appeal file, this became even more apparent.
[41] Appellant's counsel in closing argument once again submitted that Mr. Abbott's criminal convictions were prima facie evidence of the underlying facts in the civil proceedings. He [page225] argued that Mr. Abbott could avoid the persuasive weight of the prior convictions by: (i) adducing new evidence, not available at the conviction; (ii) showing that the issues are different; and (iii) showing there was some lack of fairness or effective representation in the prior proceeding.
[42] The trial judge, having heard the evidence of Ken and Rick, concluded that F. (K.) v. White allowed for his doing so, where there is a completely different approach to the defence taken in the criminal trial than in the subsequent civil action. Later I will demonstrate several reasons why this trial was not a "completely different approach".
The Court of Appeal file
[43] In his closing submissions, counsel advised the trial judge that the Court of Appeal had considered "fresh evidence" on Mr. Abbott's appeal, although the appellant was unaware of what that evidence consisted of. Counsel volunteered to obtain the file and ascertain what the "fresh evidence" was that the Court of Appeal considered.
[44] Subsequently, counsel filed the relevant portions of the Court of Appeal file with the trial court. He noted that the record that had been considered by the Court of Appeal contained affidavits from the Crown attorney at the criminal trial and Mr. Abbott's defence counsel. It also contained transcripts of cross-examinations of defence counsel.
[45] Each of the affidavits that were filed contained information about the allegations of both Ken and Rick, and how all concerned knew of their allegations at the time of the appeal. More significantly, the affidavits revealed that each of their allegations was known to defence counsel prior to Mr. Abbott's sentencing; indeed, Rick's allegations were known to defence counsel and Mr. Abbott prior to trial.
[46] Appellate counsel had not used the allegations of Ken and Rick as an independent ground of appeal as "fresh evidence" that might have affected the outcome of the trial. Nevertheless, in his ruling on the weight to be given to the previous convictions and any consideration of the Court of Appeal file, the trial judge again relied upon F. (K.) v. White, and concluded, at para. 34 of his reasons:
[F.(K.) v. White] makes it clear that a defendant has the right to attempt to rebut the weight of a criminal conviction with new evidence. The conviction in the present case is prima facie proof of the alleged abuse. However, there is evidence before me that was not adduced at the criminal trial, which, for reasons that follow, rebuts that proof. [page226]
[47] The trial judge found that the evidence of the allegations of Ken and Rick that was before the Court of Appeal was not subject to any cross-examination or challenge and was considered by the Court of Appeal for a limited purpose. He concluded, at para. 41 of his reasons:
Having had an opportunity to consider the material that was before the Court of Appeal and bearing in mind the passage which I highlighted from [F.(K.) v. White], I see nothing to preclude me from considering the evidence of Ken Abbott and Rick Abbott. The material before the Court of Appeal was filed to support the argument that trial counsel had been incompetent and for that purpose only. There is no indication in the Court of Appeal's reasoning that the evidence of Ken Abbott and Rick Abbott was rejected because it did not meet the test for admission of fresh evidence established in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759.
[48] With respect, I must disagree with the trial judge. First, as I have noted repeatedly in these reasons, the test to be applied is not whether there is evidence that was available and simply not adduced at the criminal trial; rather, it is whether or not there is fresh or new evidence that was not available at the criminal trial.
[49] In this case, Mr. Abbott had a full and fair opportunity to litigate the issue at the criminal trial with the very same evidence he adduced at the civil trial. He elected not to do so with the assistance of competent counsel, and thus it cannot be said, contrary to what the trial judge found, that the civil trial constituted a "completely different approach".
[50] In addition, there is no indication in the Court of Appeal file that the evidence was accepted because it met the test for fresh evidence pursuant to Palmer. The full record, including the Court of Appeal file, and the evidence itself heard by the trial judge make it abundantly clear that it was not fresh evidence pursuant to Palmer. Once again, Mr. Abbott and his counsel from the beginning knew -- in various forms -- of the existence of this evidence. It was not new or fresh in the Palmer sense, and it was not new or fresh in the abuse of process sense, if indeed there is any difference.
Conclusion
[51] In interpreting the authority of F. (K.) v. White in the erroneous fashion he did, the trial judge embarked upon a retrial of a matter that had previously been fully and fairly decided. Regrettably, the trial judge wrongly believed that because Mr. Abbott chose not to testify at his criminal trial, or call the evidence of at least his son Rick, this satisfied the test to re-hear the matter because it was evidence "not adduced" at the previous trial. As I [page227] said, the civil trial was not a completely different approach for purposes of establishing whether or not it constitutes an abuse of process.
[52] First, at the criminal trial Mr. Abbott, with the assistance of counsel, made the tactical decision not to testify or call any evidence in his defence. Rick's allegations were known to defence counsel and Mr. Abbott prior to the trial. Mr. Abbott's defence counsel, in the affidavit filed with the Court of Appeal, recounts how Mr. Abbott and he together made the tactical decision that Mr. Abbott would not testify at his criminal trial. Further, defence counsel's affidavit notes that the decision was also made not to call Rick as a witness because his evidence was "vague" and he "was not a very good witness".
[53] Second, immediately after Mr. Abbott's conviction, and prior to his sentencing hearing, Ken and Rick gave statements to Mr. Abbott and his lawyer, and to the police about their alleged sexual interaction with the appellant. Indeed, the Crown Attorney's affidavit that was also filed with the Court of Appeal notes how the evidence of Ken and Rick was known and fully disclosed to the police, Mr. Abbott and his counsel. The disclosure of this evidence was made before sentencing and the appeal. In fact, the sentencing of Mr. Abbott was adjourned to allow a "full investigation of the allegations of Ken and Rick" and to give Mr. Abbott and his counsel more time to consider it.
[54] Third, three years after the conviction, Mr. Abbott appealed on two grounds: (i) [a s.] 11(b) Canadian Charter of Rights and Freedoms issue, and (ii) ineffective assistance of counsel. Appellate counsel were aware of the evidence of Ken and Rick, but did not advance it as a discrete ground on appeal. The first ground was abandoned and the Court of Appeal only heard about ineffective counsel. The appeal was dismissed by way of endorsement.
[55] The end result is, the circumstances did not dictate that relitigation was necessary to enhance the credibility and effectiveness of the adjudicative process as a whole. This trial amounted to an abuse of process because it brought about a different result that in all the circumstances undermines the credibility of the judicial process.
[56] Notwithstanding the erroneous opinions of both appellant's trial counsel and the trial judge, relitigation of this case should not have occurred. The trial judge should not have considered any of Mr. Abbott's evidence, including that of his two sons, for the issue of liability. Liability was proven upon Mr. Abbott's agreement that his criminal convictions are prima facie evidence [page228] of the underlying facts. The trial judge should have proceeded to hear evidence solely for the purpose of deciding the amount of damages to be awarded to the appellant. [See Note 1 below]
[57] In applying the doctrine of abuse of process in CUPE, supra, in order to balance the concern of finality in litigation against fairness to a particular litigant, Arbour J. cited with approval the following passage from the judgment of Doherty J.A. in the Court of Appeal at para. 56:
Despite the arbitrator's insistence that he was not passing on the correctness of the decision made by Ferguson J., that is exactly what he did. One cannot read the arbitrator's reasons without coming to the conclusion that he was convinced that the criminal proceedings were badly flawed and that Oliver was wrongly convicted. This conclusion, reached in proceedings to which the prosecution was not even a party, could only undermine the integrity of the criminal justice system. The reasonable observer would wonder how Oliver could be found guilty beyond a reasonable doubt in one proceeding and after the Court of Appeal had affirmed that finding, be found in a separate proceeding not to have committed the very same assault. That reasonable observer would also not understand how Oliver could be found to be properly convicted of sexually assaulting the complainant and deserving of 15 months in jail and yet also be found in a separate proceeding not to have committed that sexual assault and to be deserving of reinstatement in a job which would place young persons like the complainant under his charge. [See Note 2 below]
[58] None of the evidence heard by the trial judge on the issue of Mr. Abbott's liability is capable of establishing that Mr. Abbott's previous criminal trial was tainted by fraud or dishonesty. None of the evidence, as I have shown above, establishes that there is any fresh evidence that was not available at the criminal trial. And, none of the evidence dictates that the result in the criminal trial was unfair. The abuse of process doctrine applies to preclude relitigation of the criminal convictions.
Disposition
[59] For the above reasons, I would allow the appeal. The findings of the trial judge on the issue of liability should be set aside. I would substitute a judgment allowing the appellant's action and award damages in the amounts as assessed by the trial judge. The appellant is entitled to her costs of the action on a partial [page229] indemnity basis as well as her costs of the appeal in the amount of $10,000 inclusive of disbursements and GST.
Appeal allowed.
Notes
Note 1: The trial judge assessed damages of $100,000 for generals, $50,000 aggravated, $25,000 for futrue loss of income, and $25,000 for future costs of drugs.
Note 2: Toronto (City) v. Canadian Union of Public Employees, Local 79 (2001), 2001 24114 (ON CA), 55 O.R. (3d) 541 (C.A), at para. 84.