SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-386444
DATE: 20140228

RE: Mark Harris and Fiona Harris, Plaintiffs

AND:

Lorne Levine, Defendant

BEFORE: Penny J.

COUNSEL:
J. Markin for the Plaintiffs

L. Sokolov for the Defendant

HEARD: February 27, 2014

ENDORSEMENT

The Motion

[1] This is a motion for an order striking the plaintiffs’ claim, without leave to amend, as frivolous and vexatious or an abuse of the process of the court.

Background

[2] The plaintiff, Mark Harris, was convicted of one charge of criminal harassment and one charge of assault causing bodily harm following a six-day trial before The Honourable Mr. Justice Marrocco.

[3] Harris was represented at trial by the defendant, Lorne Levine. Harris retained new counsel and appealed his convictions.

[4] There is a “Procedural Protocol Re Allegations Of Incompetence Of Trial Counsel In Criminal Cases” effective May 1, 2000. That Protocol provides, among other things, that:

Appeal counsel shall file any and all materials in support of an allegation of professional incompetence, or an allegation that the conduct of trial counsel otherwise contributed to a miscarriage of justice, with the Court as soon as possible, no later than any deadline established by the case management Judge, and before the appeal is listed for argument. These supporting materials may include any necessary transcript of the trial proceedings, an affidavit from the appellant, an affidavit from trial counsel, ad affidavit from any other witness who had an opportunity to observe the relevant events, or any other relevant documentation.

[5] Harris’s notice of appeal alleged, among other things, that Levine was negligent in his representation and that Harris received ineffective assistance from his trial counsel. This ground of appeal was abandoned prior to the hearing of the appeal.

[6] Harris’s appeal was dismissed by the Court of Appeal and no application for leave to appeal was made to the Supreme Court of Canada. There is no evidence that Harris made application under s. 696.1 of the Criminal Code.

[7] In this action, Harris sues Levine in negligence and breach of contract for general damages, special damages and punitive and exemplary damages in the total amount of $1.1 million.

[8] In the statement of claim, Harris pleads that he was “innocent of the charges against him.” The claim goes on to plead that, in breach of Levine’s duties of care as Harris’s counsel at the criminal trial, Levine “engaged in conduct that constituted both negligence as well as breach of contract.” The particulars of this negligent conduct include the allegations that Levine:

(a) failed to marshal evidence to establish Harris’s alibi defense;

(b) failed to call character evidence and to put Harris’s character in issue when it was essential to his defence to do so;

(c) failed to call a witness who would have testified that the allegations made against Harris by the prosecution were untrue and to establish a motive for the complainant to lay false charges;

(d) failed to call another witness who would have testified that Harris had no motive for committing the alleged offence;

(e) failed to prepare witnesses to give their evidence, thereby compromising critical evidence that would have resulted in Harris’s acquittal;

(f) failed to call a community police officer to establish that Harris had sought to obtain a restraining order against the complainant on a prior occasion and that the complainant had already made false allegations against him;

(g) failed to object to the introduction of similar fact evidence prejudicial to Harris’s defence;

(h) failed to produce a critical document which contradicted the complainant’s evidence and reinforced Harris’s credibility;

(i) failed to obtain as part of the disclosure, documentation that would have disproved the extent and nature of the injuries suffered by the complainant;

(j) failed to call expert evidence to establish that the injuries sustained were inconsistent with Harris’s alleged conduct; and

(k) failed to call evidence regarding Harris’s immigration status which, if called, would have meant Harris “would likely have obtained a discharge rather than the registration of a conviction.”

[9] The statement of claim goes on to plead that “but for” the acts of negligence and breach of contract Harris “would have been found not guilty of the offence[s] charged and would have been acquitted by the court.” The statement of claim concludes that, as a result of the negligence of Levine, the plaintiff “was found guilty [and] was sentenced” and, as a result, had his immigration status imperiled, lost standing and reputation in the community and suffered humiliation and loss of self-esteem, depression and other loss of enjoyment of life.

Analysis

[10] In my view, this case is on all fours with the decision of Stevenson J. In Brown v. Lee 2012 ONSC 4154 (S.C.J.). I agree with Stevenson J.’s reasons in dismissing the plaintiff’s action as an abuse of process. I can do no better than to adopt, in its entirety, her analysis from paragraphs 6 to 15 of her decision in that case.

[11] The authorities, including dicta in Wernikowski v. Kirkland Murray & Ain (1999) 1999 3822 (ON CA), 50 O.R. (3d) 124 (C.A.), para. 48, clearly establish the proposition that the proper forum for addressing negligence of defence counsel in a criminal matter is via the process established for raising that issue on appeal. See: Balkwell v. Ducharme 2006 CanLI12712 (Ont S.C.) paras. 9-10; Fischer v. Halyk 2003 SKCA 71 (Sask. C.A.) para 44; Michaud v. Brodsky 2008 MBCA 67 (Man C.A.) paras. 5-7; Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79, 2003 SCC 63, [2003] S.C.J. No. 64, paras. 46, 51-52 and 54. See also Folland v. Reardon (2005) 2005 1403 (ON CA), 74 O.R. (3d) 688 (C.A.) para. 98 (where the accused was successful in overturning the conviction and was permitted to pursue a civil claim against his counsel).

[12] I agree with plaintiffs’ counsel that Harris’s subjective intentions (said to be to “clear his name”) are not relevant. As the S.C.C. said in Toronto v. CUPE, supra, it matters little what the plaintiff’s motive for re-litigation is. The desire to attack a judicial finding is not in itself an improper purpose because the law permits that objective to be pursued through various reviewing mechanisms. The issue is one of substance. But, as one can see from the statement of claim in this case, the objective of the plaintiffs’ 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.

[13] The language of the S.C.C. in Toronto v. CUPE, supra bears repeating (paras. 51, 52 and 54):

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.

In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (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. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

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.

[14] In this case, the competence of representation at trial was raised in the notice of appeal but was not pursued. The evidence before me is that Mr. Harris has sued his appeal counsel for failure to advance this argument.

[15] While appeal counsel’s failure to advance the competence argument may well fall within the scope of legitimate claims referred to by the Ontario Court of Appeal in Wernikowski, supra (and I make no pronouncement on that issue as it is not before me), I do not think, having failed to pursue the matter of trial counsel’s competence on appeal, the matter can legitimately be raised now in civil proceedings against Levine, in light of the aforementioned prevailing authority.

[16] Accordingly, the motion is allowed and the statement of claim is dismissed as being an abuse of process, in accordance with the authorities cited above.

Costs

[17] Counsel for the defendants sought costs of the motion and the action on a partial indemnity basis, inclusive of disbursements and HST, of $21,992.82. This involved the review and drafting of pleadings, the review of all documentation and conduct of discovery (oral in the case of the plaintiff, written in the case of the defendant) and the preparation for and attendance on the this motion. This amount, however, represents only a minor discount from full indemnity. In my view, the defendant is entitled to his costs on a partial indemnity basis fixed in the amount of $15,000 inclusive of fees, disbursement and all applicable taxes.

PENNY J.

Date: February 28, 2014