SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-381034
DATE: 20120712

RE: ROBERT BROWN
Plaintiff/Responding Party

• and -

seamus john anthony lee ( a.k.a. JIMMY LEE)
Defendant/Moving Party

BEFORE: Justice S. M. Stevenson

COUNSEL:
Robert Brown, Appearing in Person
Jordan Goldblatt, for the Defendant/Moving Party

DATE HEARD: July 9, 2012

E N D O R S E M E N T

Introduction

[ 1 ] The plaintiff, Robert Brown ("Brown") was found guilty on October 10, 2008, after trial, of one count of mischief and one count of forcible confinement with respect to a domestic dispute with his former common-law spouse. Brown was given an absolute discharge as a result of the convictions. The defendant, Mr. Lee (“Lee”), represented Brown at his trial but not at his sentencing.

[ 2 ] Brown appealed his conviction to this Court, which appeal was denied. He subsequently brought a motion for leave to appeal to the Court of Appeal which was also denied. Brown represented himself on both of these appeals. This civil action against Lee was commenced by Brown on June 16, 2009 alleging negligence with respect to Lee’s representation at the pre-trial and trial.

[ 3 ] Lee seeks to strike out the claim brought by Brown against him as an abuse of process under Rules 21.01(3) (d) and 25.11 (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Lee submits that the civil proceeding is an attempt to relitigate the criminal proceeding. He submits that it is an impermissible collateral attack on the findings of the Court in the criminal trial and an abuse of process.

Issue

(i) Is the claim brought by Brown against Lee an abuse of the process of the court and if so, should the action be dismissed?

[ 4 ] Rules 21.01(3) (d) and 25.11 (c) of the Rules of Civil Procedure state:

21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court and the judge may make an order or grant judgment accordingly.

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(c) is an abuse of the process of the court.

Disposition

[ 5 ] Brown submits that the civil action is not a relitigating of the issues, but rather an action brought against Lee with respect to his negligence. He further submits that the civil action is not an abuse of process as it is separate and distinct from the criminal proceeding. For reasons below, I disagree.

[ 6 ] In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] S.C.J. No. 64, (“ CUPE ”), the Supreme Court of Canada held that the relitigation of the judicial finding in another forum is an abuse of process. Justice Arbour, writing for the Court at paras. 51 and 54 stated:

¶51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

¶54 These considerations are particularly apposite when the attempt is to relitigate a criminal conviction. Casting doubt over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one, the conclusion of the arbitrator has precisely that effect, whether this was intended or not. The administration of justice must equip itself with all legitimate means to prevent wrongful convictions and to address any real possibility of such an occurrence after the fact. Collateral attacks and relitigation, however, are not in my view appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result.

[ 7 ] Brown admitted facts concerning the forcible confinement and mischief at trial and on examination for discovery. Additionally, on his appeal of his conviction and when he sought leave to appeal to the Court of Appeal, he did not allege negligence of counsel or ineffective representation by counsel.

[ 8 ] Brown argues that Lee should have adduced evidence as to Brown's wife’s mental state and should have called some police officers as witnesses as Brown and Lee had discussed in their trial preparation meetings. I note that Justice Eberhard’s reasons on the appeal dealt with allegations concerning Brown’s wife’s conduct and on appeal to the Court of Appeal, portions of Brown’s factum dealt with this same issue. Brown suggests that Lee should have more aggressively attempted to discredit Brown’s wife’s credibility and character. These were the same issues already dealt with in the criminal proceedings.

[ 9 ] I agree that this is an attempt to relitigate these issues and that this is an abuse of process. The issues have already been before three levels of court and all three courts have reached the same conclusion.

[ 10 ] “The proper forum to overturn a criminal conviction is that created by the criminal law itself: the appeal process, the use of fresh evidence, the ability to call into question one's representation at the appellate level…”, Fischer v. Halyk 2003 SKCA 71 at para. 44. The Ontario Court of Appeal has in place a Procedural Protocol that is accessible on its website outlining the procedures to be followed where there are allegations of incompetence of trial counsel in criminal cases in any appeal before the Court of Appeal. As indicated, Brown chose not to raise the issue of alleged incompetence of Lee on appeal through the criminal process on two separate occasions.

[ 11 ] I am concerned that the civil action will not enhance the credibility of the adjudicative process as set out in the CUPE decision at para. 52. I am also concerned that the civil action will result in significant court costs.

[ 12 ] As indicated, Brown states that this is a negligence case against his former lawyer, Lee, and not a relitigation of the criminal trial. Justice Doherty in the Ontario Court of Appeal decision of Wernikowski v. Kirkland, Murphy & Ain, 1999 3822 (ON CA), [1999] O.J. No. 4812 at para. 46, outlined situations where negligence claims against a criminal lawyer could be struck as an abuse of process which is applicable in this case:

…Actions brought for an improper motive (e.g. to harass complainants), actions brought where the lawyer's competence was unsuccessfully litigated by the plaintiff during the criminal proceedings, actions brought after a considered decision was made not to litigate the lawyer's competence in the context of the criminal proceedings, or actions brought before the plaintiff had exhausted all remedies in the criminal process could constitute an abuse of process. No doubt there will be other situations in which a negligence action could properly be characterized as an abuse of process. Each case will turn on its own facts. As the abuse of process inquiry is essentially a factual one, I would think that defendants would be in a better position to raise that issue after pleadings are exchanged and discoveries completed.

[ 13 ] Brown also submits that this motion by Lee should have been brought earlier, but I agree with the submissions of counsel for Lee that, as stated by Justice Doherty in Wernikowski, Lee is in a better position to raise this issue now after pleadings have been exchanged and discoveries completed.

[ 14 ] In the decision of Michaud v. Brodsky, [2008] M.J. No. 201, the Manitoba Court of Appeal also dealt with an issue concerning an allegation by a plaintiff that the claim was not a collateral attack on a criminal conviction, but rather a cause of action for damages based on the defendant lawyer's negligence. The issue of causation was found by the Court to be important in these types of cases and is also relevant to the issue before me. At para. 9 of Michaud, Steel J.A. writing for the Court, explained the importance of causation:

This argument ignores the importance of the issue of causation. A cause of action in negligence cannot be proven here without a finding that the damages suffered as a result of the criminal conviction would not have occurred but for the defendant's negligence. Without the causal link, the defendant is not liable, even though he may have been negligent. Thus, in a civil trial, Michaud would be obliged to establish on a balance of probabilities that he would have been acquitted had Brodsky not been negligent in his defence. This would require a civil trial where the merits of the criminal case would effectively be reassessed. I agree with the reasons and the conclusion of the motions court judge, where he stated (at para. 45):

Despite counsel's argument that this claim only asks for damages, one need only imagine the trial if there is any doubt that this is re-litigating the criminal trial. In order to prove the assertion by the plaintiff that conducting the trial according to his preferred method would have resulted in an acquittal, the trial would have to be re-done so the judge could hear the Crown's evidence and then hear all the evidence the plaintiff says should have been called. The court would then be asked to decide on a balance of probabilities that an acquittal would have been obtained. The plaintiff may formally be asking for damages only but effectively to arrive at his destination he has to re-litigate the criminal trial.

[ 15 ] Following the reasoning of Michaud, in order for Brown to prove causation in his negligence action against Lee, he would have to show on a balance of probabilities that he would have been acquitted but for the conduct of Lee. There is no doubt that this leads to a relitigation of the criminal matter where the merits of the criminal case would be reassessed. This would inevitably affect the integrity of the adjudicative process.

[ 16 ] For all of these reasons set out above, I find that this civil action brought by Brown against Lee is an attempt to relitigate the criminal issues and is an abuse of process. I therefore dismiss the claim against Lee in its entirety.

[ 17 ] The parties made submissions with respect to costs at the end of the hearing of the motion. The Defendant has been successful on this motion and the claim is dismissed. As stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 26, with respect to costs: “...the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. Taking into consideration the principles set out in Boucher and the factors set out in Rule 57 of the Rules of Civil Procedure which the court may consider in exercising its discretion, the Plaintiff shall pay costs to the Defendant in the amount of $12,000.00 inclusive of HST and disbursements, within 30 days.

Order

[ 18 ] I order the following:

(1) The claim brought by the Plaintiff against the Defendant is dismissed in its entirety.

(2) The Plaintiff shall pay costs to the Defendant in the amount of $12,000.00 inclusive of HST and disbursements, within 30 days.

Stevenson J.

DATE: July 12, 2012