COURT FILE AND PARTIES

COURT FILE NO.: CV-12-470633

DATE: 20131206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Madeline Mary Bonadeo, Plaintiff

– AND –

Nicole Marie Woods, Defendants

BEFORE: E.M. Morgan J.

COUNSEL:
Lindsay Beck, for the Plaintiff

Russell Allegra, for the Defendant

HEARD: December 6, 2013

ENDORSEMENT

[1] Plaintiff moves to strike the Statement of Defence and Counterclaim as disclosing no reasonable defense and as an abuse of process, pursuant to Rules 21 and 25 of the Rules of Civil Procedure.

[2] The Plaintiff submits that the Statement of Defence and Counterclaim puts forward the position that the Defendant did not commit an assault on the Plaintiff, when the Defendant in fact pleaded guilty to the assault in a criminal proceeding. The Plaintiff therefore states that the defense will inevitably lead to a trial that re-litigates the facts for which a criminal conviction has already been entered and must be struck.

[3] The incident on which the Claim is based took place at a New Year’s Eve party on December 31, 2010. The Plaintiff and Defendant apparently got into an altercation, resulting in the Defendant burning the Plaintiff with a lit cigarette. The Defendant was charged with assault with a weapon contrary to section 267(a) of the Criminal Code. The Crown proceeded summarily in the criminal case. The Defendant was represented by counsel in the criminal proceedings and pleaded guilty to the charge.

[4] The Plaintiff’s civil action claims damages resulting from the burn to her cheek and the accompanying mental distress.

[5] The Defendant’s guilty plea was accepted by Brown J. of the Ontario Court of Justice at a hearing on July 8, 2011. Counsel for the Crown narrated the events for the court, which included the following description of the assault on the Plaintiff:

Then while the accused had a cigarette in her hand, she went up to Ms. Bonadeo as she was walking from another group of people and the gentleman, Mr. Machetti, stepped in front of Ms. Bonadeo and then Ms. Woods moved her arm around the young man, with her right arm, and then pushed a cigarette into the left cheek of Ms. Bonadeo. The cigarette ambers cold be seen flying around her face and hair as she tried to move away from the burning cigarette.

[6] Counsel for the Defendant confirmed the accuracy of the Crown’s narration of events in the following terms:

I understand those facts from my client to be substantially correct Your Honour.

[7] Upon being so advised, Brown J. found the Defendant guilty of assault with a weapon.

[8] At the sentencing hearing on September 9, 2011, a victim impact statement by the Plaintiff was presented to the court. For her part, the Defendant was remorseful and apologetic. Given that response and the fact that this was a first offense by the Defendant, Brown J. granted a conditional discharge. The Defendant was ordered to attend counselling, to perform community service, to abstain from possessing a weapon for five years, to refrain from associating with the Plaintiff, and to make a restitutionary payment to the Plaintiff in the amount of $676.00.

[9] In her Statement of Defense and Counterclaim, the Defendant contends that the striking of the Plaintiff was reflexive and unintentional. She also alleges that the Plaintiff provoked the incident, and brought the matter on herself. The Statement of Defense further alleges that the Plaintiff suffered no damages beyond the $676.00 already ordered in the criminal proceedings. In any case, it is the Defendant’s position that the $676.00 award by the criminal court was meant to be a complete bar to any further damages claim by the Plaintiff. The Defendant also claims that the Plaintiff colluded or participated in an assault on the Defendant by another person present at the party, for which the Defendant claims compensatory and punitive damages in her Counterclaim.

[10] Ms. Beck, for the Plaintiff, submits that the Defense amounts to a renunciation of the guilty plea and a revisiting of the assault charge that has already been conclusively determined against the Defendant. She cites Toronto v CUPE, Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para 43 for the proposition that relitigating an issue in this way undermines the integrity of adjudicative proceedings and is an abuse of process. In addition, she notes that the Ontario Court of Appeal stated in Re Del Core and Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 OR (2d) 1, at 16, that a criminal conviction cannot be re-opened in a subsequent regulatory or civil action.

[11] Mr. Allegra, for the Defendant, responds that while the guilty plea is prima facie evidence of the Defendant’s guilt, it does not amount to proof of all of the detailed facts alleged against her. He points out that the Supreme Court of Canada in CUPE, supra, at para 53 left open a “fairness” exception to the abuse of process doctrine. Mr. Allegra submits that the facts as narrated by the Crown at the criminal hearing did not include all of the evidence that he and his client have now collected with respect to the incident in question, and that it would be unfair to deprive the Defendant of a proper defense to the civil action.

[12] I would agree with Mr. Allegra that the guilty plea only establishes that the facts narrated by the Crown were “substantially correct”. I would add, however, that if nothing else the guilty plea certainly must be taken to establish that the Defendant engaged in intentional conduct. That is the very essence of a guilty plea, and the acceptance of that plea and finding of guilt by Brown J. determines that issue for all subsequent proceedings.

[13] In the Supreme Court of Canada’s recent decision in Behn v Moulton Contracting Ltd., 2013 SCC 26, at para 40, LeBel J., for a unanimous court, quoted approvingly from the dissent of Goudge J.A. in Canam Enterprises Inc. v Coles (2000), 2000 8514 (ON CA), 51 OR (3d) 481, at para 56 (Ont CA), where it was stated that, “[o]ne circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.” That effectively summarizes what the Defendant here is attempting to do in the central part of her Statement of Defence. Having pled guilty, she cannot now assert, as she purports to do in paragraphs 15 and 19 of the Statement of Defence, that the cigarette incident with the Plaintiff was in essence an unintended accident.

[14] That, of course, is not the only defense raise by the Defendant. She is free to describe in her pleading her own version of the altercation and events leading up to the altercation, and she can defend the damages claim by alleging that the Plaintiff did not suffer the damages that she seeks. The Defendant is also free to bring a Counterclaim alleging that the Plaintiff assaulted her. None of these issues were addressed or determined with any finality in the criminal proceedings.

[15] That said, the Plaintiff is not estopped or in any other way prevented from pursuing her damages claim by virtue of the restitutionary order issued in the criminal proceedings. Ms. Beck submits, correctly, that civil damages go beyond what is covered by a Criminal Code restitutionary order. The $676.00 that Brown J. ordered the Defendant to pay does not, on its own, bar the Plaintiff from making further damages claims here.

[16] Paragraphs 15 and 19 of the Statement of Defence and Counterclaim are hereby struck out as representing an attempt to relitigate matters concluded with finality in the prior criminal proceedings. Those paragraphs are therefore an abuse of process. The balance of the Statement of Defence and Counterclaim may remain intact.

[17] Given the mixed results of the motion, there will be no costs awarded for or against either party.

Morgan J.

Date: December 6, 2013