Polgrain as Executor on behalf of Polgrain v. Toronto East General Hospital et al.

Polgrain as Executor on behalf of Polgrain v. Toronto East General Hospital et al. [Indexed as: Polgrain Estate v. Toronto East General Hospital]

90 O.R. (3d) 630

Court of Appeal for Ontario,

Rosenberg, Feldman and Simmons JJ.A.

May 29, 2008

Actions -- Bars -- Abuse of process -- Relitigation -- Nurse acquitted of charges of sexually assaulting elderly patient in hospital -- Criminal trial judge expressing his belief in accused's innocence -- Patient's estate subsequently suing nurse and hospital for damages -- Action not constituting attempt at relitigation -- Action not barred by doctrine of abuse of process.

The defendant C, a nurse, was acquitted on charges of sexually assaulting P, an elderly hospital patient. In his reasons for judgment, the trial judge expressed his belief in C's innocence. P's estate subsequently brought an action against P and the hospital for damages arising out of the alleged assaults. The hospital moved for an order dismissing the action as an abuse of process. The motion was granted. The motion judge was aware that ordinarily an acquittal in a criminal case is not a bar to a subsequent civil action founded on the same facts, because of the different burdens of proof, but found that it would be an abuse of process to allow the relitigation of the criminal trial judge's determination that the assaults did not in fact occur. The plaintiff appealed.

Held, the appeal should be allowed.

The abuse of process doctrine, in the relitigation context, seeks to prevent the use of the court process in a way that would bring the administration of justice into disrepute. One of the core principles underlying the abuse of process doctrine in this context is that judicial findings are final and binding and conclusive unless set aside on appeal or lawfully quashed. It is significant, therefore, that there may be no way for any of the parties to appeal additional findings made by a trial judge in a criminal matter. An appeal is against the verdict, not the reasons for the verdict. [page631] The only part played by the reasons is that they may disclose an error of reasoning that taints the lawfulness of the verdict. That the trial judge went further than he had to and found not simply that he had a reasonable doubt but that the sexual assaults did not, in fact, occur, was not appealable. A criminal court cannot make a formal declaration of an accused's factual innocence. The reasons of the trial judge in acquitting C were not judicial findings that attracted the same relitigation concerns as did the formal verdict. To dismiss the civil action as an abuse of process would attribute to the reasons of the trial judge a declaration of innocence, a verdict that was not legally open in the criminal proceedings. To give full legal significance for abuse of process purposes to matters that were not essential to the decision would confuse the roles of the criminal and civil courts.

APPEAL from an order of Lederer J. (2007), 2007 CanLII 41437 (ON SC), 87 O.R. (3d) 55, [2007] O.J. No. 3791 (S.C.J.), dismissing an action as an abuse of process.

Cases referred to R. v. Mullins-Johnson (2007), 87 O.R. (3d) 425, [2007] O.J. No. 3978, 2007 ONCA 720, 231 O.A.C. 64, 228 C.C.C. (3d) 505, 50 C.R. (6th) 265, 76 W.C.B. (2d) 637, apld Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC Â220-071, 17 C.R. (6th) 276, 59 W.C.B. (2d) 334, REJB 2003-49439, 120 L.A.C. (4th) 225, affg (2001), 2001 CanLII 24114 (ON CA), 55 O.R. (3d) 541, [2001] O.J. No. 3239, 205 D.L.R. (4th) 280, 149 O.A.C. 213, 37 Admin. L.R. (3d) 40, [2002] CLLC Â220-014, 45 C.R. (5th) 354, 107 A.C.W.S. (3d) 426, 51 W.C.B. (2d) 16 (C.A.), consd Other cases referred to Trang v. Alberta (Director of Edmonton Remand Centre), [2002] A.J. No. 890, 2002 ABQB 658, [2003] 2 W.W.R. 79, 8 Alta. L.R. (4th) 30, 322 A.R. 212, 26 C.P.C. (5th) 340, 54 W.C.B. (2d) 609 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 16, 676 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3)

Susan M. Vella, for appellant Debra Polgrain. Daphne Jarvis, for respondent Toronto East General Hospital.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This appeal concerns an attempt by a plaintiff to relitigate the facts underlying an acquittal for sexual assault. The motion judge, Lederer J., granted a motion by the defendant hospital under rule 21.01(3)(d) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] and dismissed the action as an abuse of process. The motion judge made this order because he interpreted the reasons of the judge in the criminal case as expressing a finding that the sexual assault did not occur, rather than merely expressing a reasonable doubt. The plaintiff appeals [page632] against the order dismissing its action. The defendant hospital cross-appeals the motion judge's cost orders.

[2] In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, the court affirmed the use of the doctrine of abuse of process to preclude relitigation even though the strict requirements of issue estoppel are not met. C.U.P.E. involved relitigation of the facts underlying a conviction. While the Supreme Court of Canada enunciated a broad and flexible doctrine of abuse of process in C.U.P.E., in my view the doctrine does not extend to prevent this action.

[3] Accordingly, I would allow the appeal and set aside the order dismissing the action. The Facts

[4] This action is brought by the estate of Margaret Polgrain who, in 2000, was a 73-year-old patient in the intensive care unit at the Toronto East General Hospital. Mrs. Polgrain was severely disabled and entirely dependent on the nurses and staff of the hospital. The defendant Peter Cocchio was a nurse at the hospital and assigned the care of patients in the intensive care unit. Two employees of the hospital believed that they witnessed Mrs. Polgrain being sexually assaulted by Mr. Cocchio on two separate occasions in June 2000.

[5] On June 17, a nurse named Pamela Rogers was assigned to care for Mrs. Polgrain. She testified that a few minutes after she had attended to Mrs. Polgrain she noticed that the door to her patient's room was shut. She decided to investigate and found Mr. Cocchio with his back to the door and his groin near Mrs. Polgrain's head. Mrs. Polgrain's body and the bed had been repositioned. Ms. Rogers approached Mr. Cocchio and asked for an explanation. He said that he was trying to make her more comfortable and had also given her more sedation. Ms. Rogers noticed that there was a small blanket over Mrs. Polgrain's eyes and that Mr. Cocchio was pulling up the zipper to his pants. There was no medical reason for the patient's eyes to be covered and no reason to reposition the patient. Further, in her view, Mrs. Polgrain should not have been given additional sedation in light of a scheduled procedure later that day. Ms. Rogers also noticed a fluid on a towel which she believed to be semen. She took a sample of the fluid to the laboratory but the lab technician did not detect any sperm when the fluid was examined under a microscope. While Mr. Cocchio was the cover nurse for Mrs. Polgrain's room, according to Ms. Rogers there was no reason for him to be in the room at the time. [page633]

[6] The evidence concerning the second count of sexual assault was given by a respiratory therapist, Jill Aucoin, who testified to an event on June 27. While the details were somewhat different, again there was no apparent reason for Mr. Cocchio's actions in relation to the patient and the patient's eyes were covered by a towel. The witness noticed Mr. Cocchio adjusting his pants and she believed he was putting his penis back into his pants. Mr. Cocchio had no assignment to Mrs. Polgrain's room on that day.

[7] While the employees reported their concerns to superiors, nothing was done by the hospital until a police investigation into Mr. Cocchio in relation to a second patient. Mr. Cocchio was subsequently charged with three counts of sexual assault: two of the counts related to Mrs. Polgrain and the third to another female patient. Mrs. Polgrain had passed away before the trial.

[8] The only matter in dispute at the criminal trial was whether the assaults took place. There was no question of identity or that the patients were incapable of consenting. Mr. Cocchio testified at the trial. He denied sexually assaulting the patients and while he had no specific recollection of the events of June 17 and 27, he explained what he would have been doing in Mrs. Polgrain's room.

[9] Following a trial in 2003, before LaForme J. without a jury, Mr. Cocchio was acquitted of all charges. The Trial Judge's Reasons in the Criminal Case

[10] This appeal turns on the reasons given by the trial judge in the criminal case. Those reasons are lengthy and appear to constitute a thorough review of the evidence adduced at the trial. However, for the purpose of this appeal I need only set out a few of the key passages that were relied upon by the respondent. In short, it was the position of the respondent that the trial judge acquitted Mr. Cocchio not simply because he had a reasonable doubt as to his guilt; rather, he found on a balance of probabilities that the sexual assaults did not occur.

[11] The trial judge was very critical of several of the key Crown witnesses. For example, he found that Ms. Rogers was prone to exaggeration and selective in her recollection of events. He did not trust some of her evidence unless it was confirmed by other independent evidence. He observed that several of the hospital witnesses "fell short of totally honouring" their oath to testify truthfully. He did not trust Ms. Roger's evidence about the blanket being over Mrs. Polgrain's eyes and he did not believe Ms. Aucoin's testimony that she had observed a sexual assault.

[12] The trial judge dealt at length with the identification of the fluid collected by Ms. Rogers. He was convinced that the fluid [page634] was not Mr. Cocchio's semen. He considered Mr. Cocchio to be a sincere witness who gave reasonable explanations for his conduct. He was satisfied that there were many reasons why Mr. Cocchio would have been in the patient's room. While only counts 1 and 2 relate to Mrs. Polgrain, the trial judge stated as follows in concluding Mr. Cocchio should be acquitted [at paras. 14-15]:

The question is, then, does the circumstantial evidence allow for a conclusion beyond a reasonable doubt that Mr. Cocchio did this, or is the court left with nothing more than guesswork or speculation? The answer is an emphatic no. The evidence, I find, fails completely to prove the guilt of Mr. Cocchio. Indeed, the evidence of the prosecution failed to allow for any meaningful degree of anything other than the merest of speculation.

In the end I am satisfied that on the totality of the evidence, not only is Mr. Cocchio not guilty of Counts 1 and 2, what Ms. Rogers and Ms. Aucoin believe they saw is simply wrong. The evidence reveals this to be the case, and thus, Mr. Cocchio's innocence. . . . . .

As with Counts 1 and 2, not only do I find that the Crown has not proved Mr. Cocchio's guilt beyond a reasonable doubt. Rather, I find that the totality of the evidence, once again, proves Mr.Cocchio's innocence. (Emphasis added)

[13] Finally, the trial judge addressed the Polgrain family and Mr. Cocchio. He advised [at para. 16] the family to believe that Mr. Cocchio "did not [sexually] assault your mother and loved one". He told Mr. Cocchio: "You should leave here and accept that you have been exonerated." The Civil Action

[14] One of Mrs. Polgrain's daughters, the executor of her estate, commenced an action on behalf of the estate in July 2001 against the hospital and Mr. Cocchio. The claim against Mr. Cocchio is for sexual assault, battery and breach of fiduciary duty. The claim against the hospital is for vicarious liability for the actions of Mr. Cocchio, breach of contract, breach of fiduciary duty, occupier's liability, breach of non- delegable duty arising from the hospital's failure to ensure the safety of the patient, and negligence in failure of the hospital to properly investigate and report the incidents to the police and regulatory bodies. Mr. Cocchio has not defended the action and was noted in default. The Motion Judge's Reasons

[15] The motion judge gave careful and thoughtful reasons. He relied principally upon the C.U.P.E. decision in finding that the action against the hospital was an abuse of process. The motion [page635] judge was aware that ordinarily an acquittal in a criminal case is not a bar to a subsequent civil case founded on the same facts, because of the different burdens of proof. But, in this case, the trial judge had made findings on a balance of probabilities. In his view, at para. 30, it would be "an abuse of process to allow the relitigation of the determination made by LaForme J. that the assaults did not occur. The evidence he heard was complete, his analysis was comprehensive and his finding certain." The motion judge was of the view [at para. 36] that the appellant "cannot escape the glaring reality" that it was attempting to relitigate the question of whether the sexual assaults occurred.

[16] The motion judge interpreted C.U.P.E. as requiring protection of the integrity of the adjudicative process and that this may require the court to examine the reasons behind the disposition by a criminal court. The motion judge rejected the appellant's submission that new evidence in the form of expert evidence about nursing standards could be adduced at the civil trial and could lead to a different result. He noted that the issue of nursing standards was not new and such expert evidence would have been available at the time of the criminal trial.

[17] The motion judge concluded, at para. 53, by stating that this was an unusual and perhaps unique situation since it is rare for a judge to be able to make "the certain, unambiguous and conclusive findings" that the trial judge made in this case. He was of the view that it was "unlikely that this will happen soon again". Analysis

[18] This case turns upon the application of the abuse of process doctrine to prevent relitigation. More particularly, the case depends upon the application of the doctrine as it was explained in C.U.P.E. (1) Application of C.U.P.E. to this case

[19] The C.U.P.E. case involved an attempt to relitigate a conviction. A recreation instructor employed by the City of Toronto was charged with sexually assaulting a young boy under his supervision. He pleaded not guilty and was tried before a judge alone. He testified and denied committing the offence, but was convicted and his conviction was affirmed on appeal. A few days after the conviction, the City of Toronto fired the employee. The employee grieved the dismissal. The parties to the grievance were his union and the City of Toronto. Following a hearing at which the employee testified and again denied committing the offence, the arbitrator held that the employee had been [page636] dismissed without just cause. In effect, the arbitrator found that the employee had not committed the sexual assault. An application by the City of Toronto for judicial review was allowed and the finding of the arbitrator set aside. That holding was upheld by this court in reasons reported at (2001) 2001 CanLII 24114 (ON CA), 55 O.R. (3d) 541, [2001] O.J. No. 3239 (C.A.) and then by the Supreme Court of Canada.

[20] The reasons of the Supreme Court on the issue of abuse of process were written by Arbour J. She considered three doctrines that could prevent the relitigation of the conviction in the grievance proceedings: (1) issue estoppel, (2) collateral attack and (3) abuse of process. She concluded that the better approach was through the doctrine of abuse of process.

[21] The reasoning that led her to that approach applies equally to this case. Issue estoppel does not apply because the parties are not the same. In this case, neither the appellant nor the respondent hospital had been parties to the criminal proceeding. The doctrine against collateral attack also does not apply because the appellant does not seek to overturn the acquittal. The appellant, as it must, accepts the acquittal; but it says that because of the different burdens of proof it is entitled to attempt to establish on a balance of probabilities that Mrs. Polgrain was sexually assaulted.

[22] The core principle which the abuse of process doctrine seeks to vindicate is to prevent the use of the court process in a way that would bring the administration of justice into disrepute. Relitigation of a claim that a court has already determined may bring the administration of justice into disrepute by violating "such principles as judicial economy, consistency, finality and the integrity of the administration of justice": C.U.P.E., at para. 37. As such, abuse of process focuses "less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice": C.U.P.E., at para. 43.

[23] In this case, the respondent hospital submits that permitting the appellant to relitigate the sexual assault in the civil proceeding engages the integrity of judicial decision making. It submits that the civil action attempts to impeach a judicial finding through relitigation in a different forum. It relies in particular on the comments by Arbour J. in C.U.P.E., at para. 51. In that passage, Arbour J. points out the practical problems with relitigation. First, there can be no assumption that relitigation will lead to a more accurate result. Second, if the same result is reached, the relitigation has been a waste of judicial resources, an unnecessary expense for the parties and additional hardship for witnesses. Third, if the result is different, the inconsistency will undermine the credibility of the entire [page637] judicial process "thereby diminishing its authority, its credibility and its aim of finality".

[24] Ordinarily, relitigation in a civil forum of the facts underlying an acquittal does not engage these concerns because of the different burdens of proof. A finding in the civil case that the defendant probably committed the criminal act of which he or she was acquitted does not undermine the credibility of a system that found there was a reasonable doubt. Thus, it is not a question of whether relitigation has led to a more accurate result; the system contemplates that different results are possible because of the different burdens of proof. If the same result is reached in the subsequent civil proceeding, it may be argued that there has been a waste of judicial resources, expense to the parties that might have been avoided and hardship to the parties and witnesses. However, this is a tolerable consequence because of other competing principles, in particular access to the courts to pursue legitimate claims.

[25] In this case, however, the respondent submits that relitigation would undermine the integrity of the judicial process because of the judicial findings made in the criminal case. It submits that the trial judge found as a fact that the sexual assault did not occur; the reasons disclose that the judge did not merely have a reasonable doubt but that he was of the view that the offence probably did not occur. Thus, to allow the appellant to now relitigate that finding would threaten the integrity of the adjudicative process.

[26] The hospital also submits that none of the factors that favour relitigation apply. In C.U.P.E., at para. 52, Arbour J. listed three circumstances where relitigation may be necessary to enhance the credibility and effectiveness of the adjudicative process. They are:

. . . (1) when the first proceeding is tainted by fraud or dishonesty; (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.

[27] The hospital submits that the criminal trial was obviously not tainted by fraud or dishonesty. While the appellant claims to have additional evidence in the form of expert opinions about nursing standards, that evidence was available and could have been called by the Crown and in any event is far from conclusive. Finally, the hospital submits that fairness does not require relitigation. At para. 53, Arbour J. discussed fairness in the context of relitigation. In some circumstances, preventing relitigation would create unfairness, such as where the stakes in the original [page638] proceeding were too minor to generate a full and robust response. That was not the case here; both the Crown and the defence had every reason to prosecute and defend the case as vigorously as possible.

[28] I agree with many of the hospital's submissions. In particular, I accept that the factors favouring relitigation as enunciated in C.U.P.E. do not apply. The criminal trial was not tainted by fraud or dishonesty. The proposed additional evidence is neither fresh nor conclusive, as there was some evidence at the criminal trial about nursing standards from the nurse witnesses. Further, the case did not really turn on nursing standards but on the credibility and reliability of the eye-witnesses and of Mr. Cocchio.

[29] I am also of the view that the reasons of the trial judge are reasonably open to the interpretation that he did not simply have a reasonable doubt. Rather, he was satisfied, at least on a balance of probabilities, that there was no sexual assault.

[30] Further, if unfairness is fully defined by the question of whether the party had a sufficient incentive to defend or prosecute the case then there was no unfairness. In my view, however, unfairness encompasses additional dimensions. I am also of the view that in considering the broader question of the integrity of the judicial process there are other policy interests that are important. (2) Policy considerations

[31] I start with the other dimensions of unfairness. A concern in this case is that there is no way for the appellant, or any other party to the litigation, to review the judicial findings upon which the hospital relies. An appeal is against the verdict, not the reasons for the verdict. The only part played by the reasons is that they may disclose an error in reasoning that taints the lawfulness of the verdict. That the trial judge went further than he had to and found not simply a reasonable doubt but that the sexual assaults did not occur was not a ground for an appeal.

[32] One of the core principles underlying the abuse of process doctrine in the relitigation context is that judicial findings are final and binding and conclusive unless set aside on appeal or lawfully quashed. It is therefore significant that there may be no way for any of the parties to appeal additional findings made by a trial judge in a criminal matter. The appellant obviously had no right to appeal the result of the criminal trial. But more importantly, not even the Crown, who was a party to the criminal proceeding, had a right of appeal against the trial judge's reasons. It could only appeal against the verdict. Even if the Crown was of the view that the trial judge erred in his findings of fact, unless [page639] those findings tainted the validity of the verdict the Crown could not successfully appeal. [See Note 1 below]

[33] This question of availability of review and the concept of appeal from the verdict rather than the reasons is not simply a matter of semantics or the idiosyncratic nature of criminal appeals. It goes to the essential nature of the criminal trial and what constitutes a judicial finding in that context. Barring unusual circumstances where a finding may have to be made on a balance of probabilities, [See Note 2 below] the judicial finding to be made by the criminal court is whether the case has been proved beyond a reasonable doubt. That burden of proof is the touchstone of the criminal trial and is the lens through which the facts are viewed and findings made. Any findings by the trial judge must be understood in that context.

[34] Further, as this court explained in R. v. Mullins- Johnson (2007), 2007 ONCA 720, 87 O.R. (3d) 425, [2007] O.J. No. 3978 (C.A.), an acquittal of a wrongfully convicted individual re-establishes the accused's legal innocence but does not address factual innocence. In delivering reasons for judgment, a trial judge may express in clear and strong terms the reasons for the acquittal. The trial judge in this case and the Court of Appeal in Mullins-Johnson did so but the criminal court cannot make a formal legal declaration of an accused's factual innocence.

[35] Accordingly, in my view, the reasons of the trial judge in acquitting Mr. Cocchio are not judicial findings that attract the same relitigation concerns as does the formal verdict. To dismiss this suit as an abuse of process would attribute to the reasons of the trial judge a declaration of innocence, a verdict that was not legally open in the criminal proceedings. Again, this is not a matter of semantics. There are important policy reasons for not recognizing a verdict of factual innocence. As was explained in Mullins-Johnson, at para. 25, the most compelling is the impact on other persons found not guilty:

As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, "there is a genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict" (p. 39). To recognize a third verdict in the criminal trial [page640] process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt.

[36] I am also concerned about the impact on the integrity of the judicial process in another sense. In applying the abuse of process or issue estoppel doctrines a court will be required on occasion to review the reasons for conviction to determine the matters in issue and the essential findings: see Trang v. Alberta (Director of Edmonton Remand Centre), 2002 ABQB 658, [2002] A.J. No. 890, 322 A.R. 212 (Q.B.). But where the accused is acquitted, the only essential finding is simply that the case was not proved beyond a reasonable doubt. The trial judge may arrive at that conclusion for any number of reasons. For example, in a sexual assault trial there may be a reasonable doubt that the complainant consented, that the act occurred, that the accused was the perpetrator or that the touching was of a sexual nature. It is not essential that the trial judge find as a fact that there was consent, that the act did not occur, that the accused was not the perpetrator or that the touching was not of a sexual nature. It is enough that the trial judge had a reasonable doubt on one or more of those features of the case. The judge is not required and it is not essential that the judge make a positive finding in the accused's favour on any of those issues. To give full legal significance for abuse of process purposes to matters that were not essential to the decision would confuse the roles of the criminal and civil courts.

[37] Finally, I would not want to interpret or apply the abuse of process doctrine in a way that would interfere with the wide discretion given to judges for the manner in which they express their reasons. Trial judges in criminal cases should feel free, as did LaForme J. in this case and as did this court in Mullins-Johnson, to express their reasons for acquittal in the manner they consider appropriate. They ought to be able to call the facts as they see them and express their reasons in a way that may give the parties solace, satisfaction or even vindication. Disposition

[38] Accordingly, I would allow the appeal and set aside the order dismissing the action. The appellant is entitled to its costs of the motion and the appeal. I would fix the costs of the appeal at $15,000 inclusive of GST and disbursements. If the parties are unable to agree on the costs of the motion, they may make brief written submissions within ten days of the release of these reasons. I would dismiss the cross-appeal without costs.

Appeal allowed.

Notes

Note 1: This does note even take in to account that the Crown's right of appeal in indictable proceedings is limited to questions of law alone: see Criminal Code, R.S.C. 1995, c. C-46, s. 676.

Note 2: For example, the defence of not criminally responsible by reason of mental disorder in s. 16 of the Criminal Code only needs to be proved on a balance of probabilities.