Court File and Parties
COURT FILE NO.: CV-12-452300 DATE: 2013-04-24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Romeo Joseph Phillion (Plaintiff) and Attorney General for Ontario, John Andrew McCombie, Stephen Nadori, and The Ottawa Police Services Board (Defendants)
BEFORE: Frank J.
COUNSEL: David Robins/William Sasso, for the Plaintiff Kim Twohig/Heather Mackay, for the Defendant, Attorney General of Ontario C. Kirk Boggs/Jasmine Akbarali, for the Defendants, John Andrew McCombie, Stephen Nadori and The Ottawa Police Services Board
HEARD: March 28, 2013
ENDORSEMENT
[1] On November 7, 1972, after a trial by jury, the plaintiff, Romeo Phillion, was convicted of having murdered Leopold Roy in 1967 in Ottawa. The evidence at trial included Mr. Phillion’s confession to the murder, a confession that he retracted soon after making it. Mr. Phillion was sentenced to life imprisonment. He unsuccessfully appealed his conviction through to the Supreme Court.
[2] While in prison, Mr. Phillion maintained his innocence. Beginning in 1991, Mr. Phillion sought to have his case re-opened. In 2003, he filed an application with the federal Minister of Justice for a review of his conviction. This ultimately resulted in the Minister of Justice ordering a reference to the Ontario Court of Appeal.
[3] On March 5, 2009, after a ten-day hearing that included viva voce evidence from witnesses including the trial prosecutor, defence counsel and several investigating officers, the Court of Appeal quashed Mr. Phillion’s conviction and ordered a new trial: see R. v. Phillion, 2009 ONCA 202 ["Phillion 2009"].
[4] In February of 2010, in response to the Crown’s decision to withdraw the charge, Mr. Phillion brought an application for an order under s. 24(1) of the Canadian Charter of Rights and Freedoms, requiring that he be re-arraigned so that he could plead not guilty. The trial would necessarily result in a finding of not guilty as the Crown, in its view, had no viable ability to mount a prosecution on the merits: see R. v. Phillion, 2010 ONSC 1604 at para. 92 ["Phillion 2010"]. Mr. Phillion’s Charter application was dismissed and the charge was withdrawn.
[5] In April 2012, Mr. Phillion commenced this action seeking damages as a result of the alleged negligence and wrongdoing of the Crown and police, but for which, Mr. Phillion claims, he would not have been convicted or his wrongful conviction would have been discovered and quashed sooner.
[6] The defendants seek to have this action dismissed or permanently stayed on the basis of it being an abuse of process and of it being impossible for the action to be reasonably tried.
The Issue
[7] At the heart of Mr. Phillion’s claim is his position that he had an alibi that the police had verified but failed to disclose. In a report prepared by one of the investigating officers, the defendant Detective John McCombie, dated April 12, 1968, the officer expressed the view that Mr. Phillion had a verified alibi, as he was in Trenton at a time that would have made it impossible for him to have been in Ottawa when the murder was committed.
[8] As a result of the alibi not having been disclosed to Mr. Phillion or his counsel, the jury that convicted Mr. Phillion heard no evidence with respect to the Trenton alibi.
[9] Mr. Phillion did not become aware of Detective McCombie’s April 1968 report until 1998, while he was serving his sentence and continuing with his efforts to have his conviction reviewed. He received a copy of the report from his probation officer.
[10] Mr. Phillion maintained that he was a victim of injustice because the Crown prosecuted him in the face of a verified alibi. On the reference before the Court of Appeal, Mr. Phillion had the burden of showing on a balance of probabilities that the alibi was verified: see Phillion 2009 at para. 71. Detective McCombie testified before the Court of Appeal that he had discredited the Trenton alibi, one of a number of alibis asserted by Mr. Phillion at different times. The Court of Appeal concluded that it could not decide one way or the other whether the Trenton alibi had been discredited.
[11] Mr. Phillion submits that there is nothing in the Court of Appeal decision to prevent him from proceeding with this civil action. This court is not bound by that decision, in his submission, and, in any event, this action includes claims based on issues that were not before the Court of Appeal and that it did not consider. I do not agree.
[12] The circumstances that have given rise to this motion are highly unusual. As Moldaver J.A. (as he then was) said, this case is anything but normal: see Phillion 2009 at para. 191. From a functional perspective, not only is there a reversal in the functioning of the judicial system with a trial court considering facts found by an appellate court, but also the evidence available in this action practically is limited to the evidence that was before the Court of Appeal on the reference.
[13] The fact that the evidence on which Mr. Phillion will be relying is known, combined with the findings of the Court of Appeal in the reference before it and of Ratushny J. in Mr. Phillion’s Charter application compel me to conclude that this is one of those exceptional circumstances in which a dismissal on the basis of abuse of process or a permanent stay pursuant to section 106 of the Court of Justice Act, R.S.O. 1990, c. C.43, must be granted.
Abuse of Process
[14] Rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that an action may be stayed or dismissed on the grounds that it is frivolous or vexatious or is otherwise an abuse of the process of the court.
[15] Both sides rely on the Supreme Court decision in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 ["C.U.P.E"]. That case involved the question of whether a person convicted of sexual assault and dismissed from his employment as a result could be reinstated by a labour arbitrator who concluded, on the evidence before him, that the sexual assault did not take place: see C.U.P.E at para. 1. Relying on the doctrine of abuse of process, the Supreme Court confirmed the lower court rulings that the arbitrator could not revisit the criminal conviction.
[16] Arbour J., speaking for the court, adopting the words of Goudge J.A. in Canam Enterprises Inc v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.) at paras. 55-56, described the doctrine of abuse of process as engaging 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 C.U.P.E at para. 37. The court referred with approval to Goudge J.A.’s characterization of the doctrine as one that is flexible and unencumbered by the specific requirements of concepts such as issue estoppel. As such, it is available where “allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: see C.U.P.E, at para. 37.
[17] Mr. Phillion submits that his action is not an abuse of process, as it does not seek a reversal, variation or nullification of the orders made on the reference or in his Charter application. However, this takes too narrow a view of the doctrine and confuses abuse of process with the doctrine of collateral attack. The fact that Mr. Phillion does not seek a different result than the quashing of his conviction and the subsequent withdrawal of the charge does not preclude his action being an abuse of process.
[18] The action is an abuse of process, in my view, because it is an attempt to relitigate issues that were before the Court of Appeal. The words of Arbour J., in referring to the proceedings before the arbitrator, are equally applicable to this action: It is an implicit attack on the correctness of the factual basis of the decision: see C.U.P.E at para. 34. To allow the action to proceed would risk undermining the integrity of the judicial system.
(a) the terms of reference to the Court of Appeal
[19] In order to assess the significance to this action of the Court of Appeal’s findings on the reference before it, it is necessary to consider the terms of that reference.
[20] The Court of Appeal was asked to decide two questions, only the first of which is relevant to this motion. The questions were:
In the circumstances of this case, would the new information concerning the non-disclosure of Mr. Phillion’s alibi, which is described in police reports authored by Detective McCombie, and the non-disclosure of the statements of Mr. and Mrs. Barbe and Mr. Loyer, be admissible on appeal to the Court of Appeal?
Are the recent expert reports, respecting the reliability of the Applicant’s confession, admissible on appeal to the Court of Appeal?
[21] The terms of reference then directed the Court, pursuant to s. 696.3(3)(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, to decide whether the fresh evidence, referring to Detective McCombie’s April 1998 report and the statements identified in question one of the reference, would be admissible on appeal based on the tests for the admission of fresh evidence and, if admissible, to decide the case as if it were such an appeal.
(b) issues considered by the Court of Appeal
[22] Mr. Phillion submits that in answering these questions and then hearing the appeal, the Court of Appeal did not concern itself with the civil liability of the Crown or police. He argues that the findings were for the sole purpose of determining the admissibility of the fresh evidence on the basis of trial unfairness and did not involve the consideration of whether there was malice or breaches of duty. Therefore, the concerns underlying the abuse of process doctrine are not engaged.
[23] I cannot accept this submission.
[24] The decision of the Court of Appeal that the fresh evidence is not admissible on the basis of trial unfairness is based on its finding that there was no wrongdoing on the part of the Crown. That finding flowed from the court’s finding that Mr. Phillion could not meet his burden of proving that the Trenton alibi had been discredited. These findings of the Court of Appeal are findings with respect to the very questions that the court was required to answer. The findings are inconsistent with liability in this civil action.
[25] In spite of its decision that there had been no unfairness in Mr. Phillion’s trial, the court concluded that the fresh evidence should be admitted and an appeal heard. The decision to admit the fresh evidence was based on the test in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 ["Palmer"], a case decided by the Supreme Court in 1979, after Mr. Phillion’s rights of appeal had been exhausted.
[26] In applying the Palmer test, Moldaver J.A. explained that the test “acts as a safety valve in cases such as this where, through no fault of the Crown, cogent evidence comes to light that could reasonably be expected to have affected the result at trial”: see Phillion 2009 at para.161 (emphasis added). MacPherson J., in dissent, rejected the application of the Palmer test, concluding that the fresh evidence was not sufficiently probative to reasonably have affected the jury’s verdict, when taken with the other evidence at trial: see Phillion 2009 at para. 252. In either case, the findings are inconsistent with any wrongdoing on the part of the defendants in this action.
[27] Mr. Phillion relies on the Court of Appeal decision in Polgrain v. Estate v. East General Hospital, 2008 ONCA 427, 2008 ONCA 437, [2008] O.J. No. 2092 ["Polgrain"], in submitting that the findings of the Court of Appeal in answer to the reference questions do not make it an abuse of process for this action to continue. In Polgrain, the plaintiff, as executor of her mother’s estate, brought the civil action on behalf of the estate, alleging that the defendant had sexually assaulted the plaintiff’s mother and that the hospital where the assaults occurred had been negligent in failing to prevent them. The defendant had been found not guilty in the criminal proceedings based on the same assaults. The motion judge dismissed the civil action as an abuse of process, relying on the finding of the trial judge in the criminal proceedings that the assaults did not occur.
[28] The Court of Appeal set aside the motion judges’ dismissal, holding that the criminal trial judge’s finding of innocence did not make the civil action an abuse of process. The Court stated that a declaration of innocence was not legally open to the trial judge to make (see Polgrain at para. 35) and that the finding that the assault did not occur was an additional finding unnecessary to the conviction and had to be viewed in the context of the criminal burden of proof: see Polgrain at paras. 32-33.
[29] In contrast, the findings made by the Court of Appeal in the reference – that Mr. Phillion had not met the burden of proving that the Trenton alibi was not discredited and that there was no breach of a duty to disclose – were required to be made by the Court to enable it to answer the reference questions and decide the appeal. Further, in arriving at these findings, the Court of Appeal looked at the evidence through the same lens of a balance of probabilities burden that would be applied by the judge hearing this action.
(c) relitigation
[30] I disagree with Mr. Phillion’s submission that neither the Court of Appeal’s factual findings nor the decision of Ratushny J. in Phillion 2010 attract relitigation concerns in this civil proceeding. The allegations made by Mr. Phillion in his statement of claim, if accepted, would make the Palmer test pursuant to which the Court of Appeal admitted the fresh evidence inapplicable. In my view, the court’s factual findings attract the very concern that underlies the abuse of process doctrine that is the protection of the credibility of the judicial process.
[31] Mr. Phillion submits that this civil action raises issues that were not considered in the criminal proceedings. He points out that the Court of Appeal did not consider all of the breaches of “the reasonable standard of care” applicable to Crown and the police. But, with the exceptions to which I will refer, all of the allegations on which he relies are allegations of breaches of duty to disclose couched in different terms.
[32] In order to assess the merits of Mr. Phillion’s submission that the Court of Appeal did not address the issues in his civil action, it is helpful to review some of the issues addressed by the Court of Appeal and findings made with respect to those issues:
(a) The integrity and professionalism of the defendants: The court was unanimous in rejecting any suggestion of wrongdoing or unprofessional conduct on the part of the police or Crown, and emphasized the continuing reputation for professionalism and integrity of Detective McCombie and Malcolm Lindsay, the Crown responsible for the prosecution of Mr. Phillion. Detective McCombie’s confusing evidence was accounted for as being a product of a faded memory. It held that although Mr. Phillion took the position that he was not challenging the personal or professional integrity of Mr. Lindsay or the investigating police, it was necessary to consider these things in coming to the Court’s conclusion, as the implications of Mr. Phillion’s allegations were that the conduct was unethical if not unlawful: see Phillion 2009 at paras. 82-88, 266-267.
(b) The police investigation: The Court found the police investigation to be professional and even-handed. Detective McCombie followed up on various leads related to other suspects: see Phillion 2009 at paras. 87-89, 266. It concluded that this even-handed investigation undercut the notion that Detective McCombie would have misled his fellow officers and Mr. Lindsay and in order to bring about the prosecution of a man he knew to be innocent of the crime.
(c) The impossibility of the prosecution proceeding in the face of knowledge of innocence: The court concluded that it was virtually inconceivable that Mr. Lindsay or any Ottawa police officers would have participated in prosecuting Mr. Phillion for the Roy murder knowing that he was innocent of the crime. The Court rejected the suggestion that one or more of the individuals involved might have been motivated to do so, seeing it as an opportunity to advance their careers: see Phillion 2009 at paras. 86, 267.
(d) The duty to disclose: The Court held that the Crown had no duty in 1972, based on the existing disclosure regime, to disclose a discredited alibi. It found that as Mr. Lindsay knew of the Trenton alibi evidence and the prior inconsistent statements relevant to that evidence and did not disclose them, he must have understood the alibi to have been discredited: see Phillion 2009 at paras. 107, 152, 158-159.
(e) The absence of fault on the part of the Crown: The evidence of the April 1998 report and the witness statements was not admitted on the basis of trial unfairness resulting from a failure to disclose as there had been no breach of the Crown’s duty to disclose that evidence to the defence. The Court admitted the evidence in spite of there being no fault on the part of the Crown: see Phillion 2009 at paras. 151-159.
(f) The significance of the Trenton alibi: The Court of Appeal could not say that the fresh evidence was “clearly decisive” of innocence or that on the basis of that evidence it was “more probable than not” that Mr. Phillion would be acquitted. It concluded that the outcome would depend on both how the fresh evidence unfolded at a new trial at which it would be open to a jury to reject that evidence, concluding on the basis of Mr. Phillion’s confessions, that he was the person who killed Mr. Roy: see Phillion 2009 at para. 244.
[33] Mr. Phillion is correct in saying that the Court of Appeal did not directly address many of the allegations he makes in this claim. However, the findings it did make together with the fact that there is no evidence available to enable Mr. Phillion to meet the burden of proving the specific allegations, some of which I will refer to bellow, make it an abuse of process for his action to proceed.
(d) the allegations in the statement of claim
[34] The alleged non-disclosure of evidence regarding the Trenton alibi is the core of Mr. Phillion’s claim. In the overview, at para. 6 of the statement of claim, Mr. Phillion states his claim to be that because of the defendants’ breach of their common law duties – both through negligence and by way of wrong doing, including conspiracy - Mr. Phillion would not have been convicted or his wrongful conviction would have been discovered and quashed sooner.
[35] To have any success Mr. Phillion must at least demonstrate that the defendants owed him a duty to disclose the Trenton alibi related evidence. But, such a finding is inconsistent with the findings of the Court of Appeal.
[36] The statement of claim is replete with allegations of misconduct against the defendants. However, the Court of Appeal unequivocally found there to be no evidence of such conduct on the part of Mr. Lindsay and Detective McCombie.
[37] The Court of Appeal specifically rejects many of the allegations of wrongdoing pleaded in this action. For example, it dismissed as impossible the allegation in para. 86 of the statement of claim, that Mr. Lindsay and Detective McCombie did not disclose the Trenton alibi because they were using the prosecution to advance their careers.
[38] Relying on his submission before the Court of Appeal that he was not impugning the integrity of Mr. Lindsay or the police, Mr. Phillion argues that the Court of Appeal cannot be seen as having made a finding with respect to his claim that the defendants acted with malice. I do not agree.
[39] The Court of Appeal did not rely on Mr. Phillion’s submission that he was not impugning the integrity of those involved. Rather, the Court made its own assessments of what implications the findings that Mr. Phillion asked the court to make would have with respect to the integrity of Detective McCombie and Mr. Lindsay. The Court of Appeal stated that if it were to make the findings that Mr. Phillion sought, it would carry with it a connotation of unethical, if not unlawful, behaviour on the part of the police and Crown: see Phillion 2009 at para. 85. It is impossible to read the findings of the Court of Appeal in such a way that would allow for any interpretation other than that the defendants did not act out of malice.
[40] There are allegations in the statement of claim that were not addressed directly by the Court of Appeal. But, in my view, for Mr. Phillion to succeed with respect to any of those allegations, there would have to be a finding at trial inconsistent with fundamental findings of Court of Appeal on the questions before it.
[41] For example, while the Court of Appeal did not directly address whether there was an obligation to disclose the Trenton alibi evidence after the trial, as Mr. Phillion alleges in his statement of claim, that allegation cannot succeed without a finding contrary to the Court of Appeal’s finding that the defendants had no duty to disclose. As Ratushny J. said, in response to the same allegation made before her, if there was no obligation during the 1972 trial to disclose this evidence, there could be no obligation subsequent to the trial: see Phillion 2010 at para. 71.
[42] A further example is Mr. Phillion’s allegation that there was an ongoing duty on the part of Mr. Lindsay to correct misleading Crown evidence. I agree with Ratushny J.’s conclusion in her decision refusing Mr. Phillion’ Charter application, that even if it could be said that the Court of Appeal did not squarely address this issue, “there would not have been a different result had the focus been more specifically on the Crown’s duty to correct.” (see Phillion 2010 at para. 65.) It is implicit in the Court of Appeal’s finding that Mr. Lindsay did not breach any duty to disclose and that there was no duty to correct.
[43] Mr. Phillion argues that the distinction between the duty to disclose in a criminal proceeding and the common law duty of care means that the trial judge in this action will not be relitigating the Court of Appeal’s finding that the defendants did not breach any duty owed by them to Mr. Phillion. But, as the breach of the duties of care alleged all stem from the failure to disclose, there is no distinction for the purposes of this motion.
[44] Mr. Phillion alleges, at para. 17 that his sections 7 and 11(d) Charter rights were violated and that this gives rise to a remedy of damages under section 24(1). His application before Ratushny J. in Phillion 2010, was based on the same alleged breaches. The only difference between the Charter claims made in that application and those made in this action is the remedy sought. In the criminal proceedings before Ratushny J., Mr. Phillion sought an order directing that Mr. Phillion be re-arraigned on the non-capital murder charge.
[45] For Mr. Phillion’s Charter claims in this action to succeed would require a finding that the Trenton alibi had not been discredited. But, that was precisely what the Court of Appeal held that Mr. Phillion could not establish. The burden of proof, as I have said, applied by the Court of Appeal in reaching that conclusion was the same as applies in this action: a balance of probabilities.
[46] Ratushny J. dismissed Mr. Phillion’s Charter application in a thorough and carefully reasoned decision. Mr. Phillion did not appeal that decision. Allowing the Charter allegations to proceed would be to permit the relitigation of the very issue that was before Ratushny J. and, therefore, would risk undermining the credibility of the judicial adjudicative process.
[47] At para. 148 of his statement of claim, Mr. Phillion makes allegations of negligence against the defendants that are not premised on the alibi not having been discredited. But, there is no suggestion that absent a valid Trenton alibi these allegations resulted in any loss or injury to Mr. Phillion. As a result, they can only result in a finding of liability against the defendants if Mr. Phillion can establish that the Trenton alibi had not been discredited. The Court of Appeal held that Mr. Phillion had not met his burden of establishing this. Mr. Phillion will be in no better evidentiary position to do so at trial. To allow him to proceed to make these claims would be a misuse of the court’s procedure.
[48] At para. 141, Mr. Phillion alleges that Mr. Lindsay is lying when he claims to have no relevant memory. But, Mr. Phillion has nothing to put before the court in support of that extremely serious allegation - an allegation involving criminal conduct - beyond what was considered by the Court of Appeal. Because the Court of Appeal’s findings regarding Mr. Lindsay’s integrity were essential to its finding that Mr. Lindsay did not breach any duty to disclose, it would be unfair to permit Mr. Phillion to proceed with an action in reliance on this allegation in the unusual circumstances of this case.
[49] Mr. Phillion makes allegations in his statement of claim of negligence and wrongful acts against others in addition to Mr. Lindsay and Detective McCombie. However, none of the allegations against these parties can stand unless the alibi can be shown not to have been discredited. The fact that the Court of Appeal was unable to conclude one way or the other, applying the same burden of proof that applies in this action, whether the Trenton alibi had been discredited, means that these allegations can only succeed if there is an inconsistent finding in this court.
[50] Mr. Phillion alleges, at para. 152, that the defendants’ alleged misconduct delayed the quashing of his conviction and prolonged his wrongful incarceration. It is tempting to view this claim as potentially being one that could proceed without it amounting to an abuse of process. But, on closer analysis it becomes apparent that this claim raises the same concerns that make it an abuse of process for the balance of the claims to proceed.
[51] The claim relies on there being misconduct on the part of Mr. Lindsay, a finding that was rejected by the Court of Appeal based on all of the evidence that will be before the judge in this action. The matter is somewhat different with respect to Detective McCombie. Detective McCombie’s testimony at the preliminary inquiry was misleading. To rely on this as proof of this aspect of the claim, Mr. Phillion would have to prove that Detective McCombie deliberately mislead the court and that but for his having done so, Mr. Phillion’s conviction would have been quashed sooner. But, there is no connection between the misleading testimony and the delay in the quashing of the conviction. The misleading testimony is relevant to the disclosure issue and the question of whether the alibi had been discredited. It would be in no ones interest to allow this allegation to proceed to trial. It would, instead, be an abuse of process.
(e) conclusion
[52] This is not, as Mr. Phillion argues, a case such as described by Arbour J. in C.U.P.E. at para. 52, in which “relitigating the issues would enhance rather than impeach the integrity of the judicial system.” For it to be such a case, there would have to be circumstances such as the first proceeding being tainted by fraud or dishonesty, new evidence impeaching the original result, or fairness dictating that the original result should not be binding in the new context: see C.U.P.E at para. 52 & 53. None of these circumstances exist in this case.
[53] In C.U.P.E at para. 51 Arbour J. observed that the following are relevant to the determination of whether the integrity of the adjudicative process is undermined:
(a) there can be no assumption that relitigation will yield a more accurate result than the original proceeding;
(b) 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; and,
(c) if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in itself, will undermine the credibility of the entire judicial process.
[54] All of these have application to this action.
[55] The only available assumption in this action is that relitigating the issues in it will lead to a less accurate result than in the hearing before the Court of Appeal. Whatever limited recall of events witnesses had when they testified before the Court of Appeal in 2008 will have been further diminished by the time this action is tried.
[56] The potential for waste of judicial recourses and unnecessary expense for the parties and additional hardship for some witnesses clearly is evident.
[57] Arbour J.’s final observation is of especial concern in this action. If the trial judge, on the same evidence that was before the Court of Appeal, were to come to a different conclusion than that reached by the Court of Appeal on the issues that are foundational to both proceedings, that inconsistency would most certainly undermine the credibility of the judicial process. The result would be a “diminishing of [the judicial system’s] authority, its credibility and its aim of finality.” (see C.U.P.E at para. 51)
[58] I would dismiss this action as an abuse of process.
Stay pursuant to s. 106
[59] If I had not found this action to be an abuse of process, I would permanently stay it pursuant to section 106 of the Courts of Justice Act.
[60] Section 106 states that the court may stay any proceeding in the court on terms as are considered just. This is a codification of the court’s inherent jurisdiction to control its process or prevent an abuse of that process: see Hedley v. Air Canada, [1994] O.J. No. 287 (Ont. Gen. Div) at para. 14. The rule gives the court a broader discretion to stay proceedings than under the doctrine of abuse of process. The discretion is “unfettered by any specific test”. But, it has the “overriding constraint of requiring that the circumstances be extraordinary.” see Hester v. Canada, [2008] O.J. No. 634 (Ont. Div. Ct.) at para. 15.
[61] In Gowling Lafleur Henderson LLP v. Meredith, 2011 ONSC 2686 at paras. 17-18 Master Dash canvassed the law applicable to stays. He drew the following principles from that law, which I adopt as accurately reflecting the law:
Therefore the general principles to be applied on a motion for a stay appear to be:
(1) A court may grant a stay when just and convenient to do so in order to control its process or prevent an abuse of that process.
(2) The discretion to grant a stay is highly dependent on the facts of each particular case.
(2) The discretion must be exercised sparingly and only in special circumstances.
(3) The balance of convenience must weigh heavily in favour of a stay.
(4) The court will be reluctant to grant a stay if it will deny a party’s access to the courts or substantially delay or impair his rights to have his case heard.
In appropriate cases the court may also consider one or more of the following:
(5) The court will be more inclined to grant a stay if continuation of the action may work an injustice because it is oppressive, vexatious or an abuse of process.
(6) The court will be more inclined to grant a stay if it would not cause an injustice to the responding party.
(7) If there are two or more proceedings with common facts or issues, one action may be stayed if t would avoid a multiplicity of proceedings.
(8) A stay may be ordered where privileged documents obtained in one proceeding may be used in another proceeding if it would result in unfairness or prejudice to the party asserting the privilege.
[62] The circumstances of this case are exceptional. Over 40 years have passed since the police investigated the Trenton alibi. The Court of Appeal spoke of the impossible situation this created for fact finding. Critical evidence, including police and Crown notes and reports and physical evidence relating to the alibi are missing. Witnesses’ memories have faded or are non-existent with respect to critical issues. Key witnesses are deceased.
[63] The Court of Appeal found the evidence of the witnesses who testified before it to be unhelpful because the weight to be given to their testimony was “greatly attenuated by the lengthy passage of time.” (see Phillion 2009 at para. 83). In the case of Mr. Lindsay, whose evidence is critical to Mr. Phillion’s claim though he is not a named defendant, by the time he testified before the Court of Appeal, he had no independent recollection of the alibi or what disclosure was provided: see affidavit of Malcolm Lindsay, sworn January 12, 2018, para. 18. (Motion Record of the Attorney General for Ontario, Vol. IV, pg. 51)
[64] What, then, could be served by a trial of the allegations in the statement of claim, all of which flow from the Trenton alibi? What could Mr. Phillion gain - without sacrificing the integrity of the adjudicative process - from a replay of the evidence that was before the Court of Appeal, evidence that because of the frailties of human memory would be even further diminished in its value?
[65] I am mindful that for the court to exercise its discretion to grant a stay, the balance of convenience must weigh significantly in favour of doing so: see Etco Financial Corp. v. Royal Bank of Canada, [1999] O.J. No. 3658 (Sup. Ct. Jus.) at para. 3. In this case, to grant a stay is to deny Mr. Phillion access to the courts with respect to his claim arising out of his conviction and incarceration. However, in my view, staying this action would deny Mr. Phillion no meaningful right.
[66] Mr. Phillion recognised that there could never be a retrial of the criminal charge against him. This was the position he took before the Court of Appeal. The reasons for this position included that too much evidence was missing, the memories of those witnesses who are still alive are unreliable and Mr. Phillion’s own memory was never reliable. As Mr. Phillion put it in his submissions to the court, “It would be a trial of failed memories and incomplete documentation.” (see Memorandum of Argument of Romeo Phillion filed with the Court of Appeal in R. v. Phillion (Motion Record of the Attorney General for Ontario, Vol. I1, Tab 5, para. 18))
[67] But, Mr. Phillion argues that the impossibility of a fair criminal trial does not mean that there could not be a fair trial of this civil action. He submits that there are sufficient known facts to allow for a determination of all of the issues in this action. However, this assumes that the Trenton alibi was not discredited, a fact that the Court of Appeal did not accept as having been proven. Nor can it ever be proven, because of, as the Court of Appeal put it, “the many questions that were unanswered and are now unanswerable.” (see Phillion 2009 at para. 89)
[68] None of the facts on which Mr. Phillion relies as demonstrating that a fair trial can be held serve to avoid the prejudice to the defendants resulting from the witnesses’ impaired or entirely lost memories of the relevant events, the fact that key witnesses are deceased and the lost physical evidence.
[69] For the very reasons on which Mr. Phillion relied in arguing before the Court of Appeal that a new criminal trial would be impossible, no reasonable finding consistent with Mr. Phillion’s claims regarding the credibility of the Crown and police could be made at the trial of this action on the existing evidence. This applies, as well, to his allegations at para’s 97 and 131-134 regarding the inconsistencies in the statements given by Mr. Lindsay between 2002 and 2008 and the allegations at para. 63 of acts of wrongdoing on the parts of Officers Nadori and Huneault.
[70] There is nothing on which to base an argument that it would be possible for the judge trying this action to reasonably reach any other conclusion than that there was no wrongdoing on the part of Mr. Lindsay and no basis for a finding of liability against the police.
[71] In support of their request for a stay, the defendants point to the fact that Mr. Phillion is taking a position in this action that is contrary to his position before the Court of Appeal regarding the conduct of the defendants. Before that court, Mr. Phillion maintained that the Crown and police acted in good faith. He did not challenge the personal or professional integrity of either Detective McCombie.
[72] While making contrary allegations in a subsequent proceeding may well raise questions about the reliability of a party’s allegations, a party is not necessarily precluded from changing its position. A party may reconsider the evidence and reach a different conclusion from that which it had previously reached. The appearance in this case, however, is that the change in Mr. Phillion’s characterization of the conduct of the defendants results from his realization that he has no cause of action without taking a position opposite to his submission before the Court of Appeal.
[73] In 870869 Ontario Limited v. McDonald, [2002] O.J. No. 2713 (C.A.) ["McDonald"] the Court of Appeal upheld the motion judge’s dismissal of an application on the basis of the applicant taking inconsistent positions in different courts. The Court of Appeal held that an applicant who was unsuccessful before the Rental Housing Tribunal, appearing before it on the basis of the tenancy in issue being a residential tenancy, could not subsequently bring an application in this Court for a declaration that the property was a commercial tenancy. The court stated in McDonald at para. 6: “Having been unsuccessful we do not think it is open to the appellant to resile from its position before the Tribunal and take an entirely different position in court in the hope of getting a different result.”
[74] What distinguishes this case from McDonald is that while Mr. Phillion claimed in his submissions to the Court of Appeal not to be impugning the integrity of the police or Crown, the import of his submissions was to the contrary. The fact that Mr. Phillion is now taking a position contrary to that which he purported to take in the Court of Appeal does not entitle the defendants to a stay; however, it is a factor I take into account in determining whether a stay is appropriate.
[75] While I see little prejudice to Mr. Phillion through a stay or dismissal of his action, I see great prejudice to the defendants through its continued prosecution. Mr. Phillion makes serious allegations of wrongdoing against the officers, particularly Detective McCombie, and against Mr. Lindsay going to the core of their integrity and professionalism. They are allegations that none of the individuals are able to defend other than by reference to their otherwise unblemished reputations and usual course of conduct. This is a result, as the Court of Appeal repeatedly stated, because of the frailties of human memory and absence of notes to refresh their memories.
[76] At para. 130 of the statement of claim, Mr. Phillion alleges that Detective McCombie and Mr. Lindsay spoke before Detective McCombie was to be interviewed by a representative of the Innocence Project and agreed that Detective McCombie’s position would be that the alibi had been discredited. The apparent implications of this allegation regarding the conduct of both men are scandalous. Yet, the passage of time has deprived both of the ability to directly respond to that allegation. The prejudice to them is great.
[77] In my view, it is not possible for there to be a fair trial in this action. To allow it to proceed would be an abuse of the Court’s process.
Result
[78] The plaintiff’s action is dismissed.
[79] If the parties require a cost order, they may make cost submissions in writing or may request an oral hearing through my assistant who can be reached at 416-327-2434. If an oral hearing is not requested within three weeks of the date of this endorsement, the defendants are to make brief written submissions including a cost outline within four weeks of the date of this endorsement, to be followed by the plaintiff’s submissions and cost outline no more than two weeks after that date.
Frank J.
Date: April 24, 2013