COURT OF APPEAL FOR ONTARIO

CITATION: Harris v. Levine, 2014 ONCA 608

DATE: 20140825

DOCKET: C58562

Blair, Pepall and Hourigan JJ.A.

BETWEEN

Mark Harris and Fiona Harris

Plaintiffs (Appellants)

and

Lorne Levine

Defendant (Respondent)

Joseph Markin, for the appellants

Louis C. Sokolov, for the respondent

Heard and released orally: August 21, 2014

On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated February 28, 2014.

ENDORSEMENT

[1] The appellants appeal the order of Justice Penny striking their claim against the respondent as an abuse of process. The respondent is the former criminal defence counsel of the appellant, Mark Harris. Mr. Harris was found

guilty of one count of criminal harassment and one count of assault causing bodily harm as a result of a parking dispute he had with a neighbour.

[2] On appeal in the criminal proceeding, Mr. Harris initially alleged that he received ineffective assistance from the respondent, but he abandoned that argument prior to the hearing of the appeal.

[3] Mr. Harris’ appeal was dismissed by this court and he did not seek leave to appeal to the Supreme Court of Canada. He also did not attempt to overturn his conviction utilizing the procedure set forth in s. 696.1 of the Criminal Code of Canada. Mr. Harris chose instead to commence an action in negligence against the respondent in which he took the position that he was innocent of the criminal charges.

[4] The motion judge struck the claim on the basis that it was an abuse of process.

[5] The appellants submit that the motion judge erred in finding that the claim constituted an abuse of process. They further submit that the claim is not a collateral attack on the criminal proceeding, because they are not seeking to overturn Mr. Harris’ convictions, they are only seeking compensation for damages resulting from the respondent’s negligent representation.

[6] We disagree.

[7] Clearly in the present case the civil case is a collateral attack on the convictions. We agree with the motion judge’s view that “the objective of the plaintiff’s litigation against Levine is and necessarily must be to prove that Harris was innocent and that but for Levine’s negligence, Harris would not have been convicted”.

[8] In order to succeed in the civil action, the appellants would have to establish on a balance of probabilities that Mr. Harris would have been acquitted but for the conduct of the respondent. This would inevitably result in re-litigation of the criminal charges and would potentially impeach the integrity of the adjudicative process.

[9] Whether an action constitutes an abuse of process is a discretionary decision and we see no basis for interfering with the motion judge’s conclusion here.

[10] Where there has been a finding of guilt that has been undisturbed on appeal, allegations of ineffective representation generally should be made by way of a direct attack in the context of the criminal proceeding, (Folland v. Reardon (2005) 2005 1403 (ON CA), 74 O.R. (3d) 688 (C.A.) at para.100) and not by way of a separate civil proceeding. The abuse of process in particularly pronounced in the present case where the conviction has not been overturned and Mr. Harris raised but did not pursue the issue of competence of counsel on appeal.

[11] The appeal is dismissed.

[12] Costs of the appeal to the respondent fixed at $4,500 all inclusive.

“R.A. Blair J.A.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”