ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-58274
DATE: 2014/01/22
BETWEEN:
Terry J. Stavnyck
Plaintiff/Moving Party
– and –
Standing Committee on Internal Economy, Budgets and Administration,
Stephane Lepage and Jean Philippe Frenette
Defendants/Responding Parties
Yavar Hameed and Ahmad Ramadan, for the Plaintiff/Moving Party
Auger Hollingsworth and Brenda Hollingsworth, for the Defendants/Moving Parties
HEARD: January 16, 2014
REASONS FOR Decision on motion FOR SUMMARY JUDGMENT
McNamara J.
[1] The plaintiff brings this motion for summary judgment pursuant to rule 20.01(1) and 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that there is no genuine issue requiring a trial as relates to liability for some of the causes of action being advanced in this claim.
[2] By way of background, on or about December 9, 2009, the plaintiff was present at the Senate of Canada, allegedly for the purposes of attending a committee hearing on Afghan detainees. At a point in time prior to entering the hearings, the plaintiff became involved in some form of interaction with the defendants Stephane Lepage (“Lepage”) and Jean Philippe Frenette (“Frenette”). The defendant Standing Committee on Internal Economy, Budgets and Administration administers the Senate of Canada Protective Service which provides security services within the Senate precincts of the Parliament buildings in Ottawa. The individual defendants Lepage and Frenette were at all material times employed by the Senate of Canada Senate Protective Service.
[3] As a result of the interaction, the plaintiff was charged with causing a disturbance and common assault. Following a trial before Justice Perkins-McVey of the Ontario Court of Justice, he was acquitted of the charges. The trial judge’s reasons were released on June 20, 2012.
[4] In 2010 the plaintiff commenced these proceedings for various causes of action, including the torts of assault, battery, use of excessive force, intentional infliction of mental suffering, malicious prosecution, and violation of specified Charter rights. The plaintiff also seeks punitive, exemplary and aggravated damages.
[5] On the motion the plaintiff filed no affidavit evidence and, in seeking the relief claimed, relies solely upon the reasons for judgment of Justice Perkins-McVey.
[6] The plaintiff’s motion materials argued that the judgment of Justice Perkins-McVey created an issue estoppel in respect of the liability of the defendants to the plaintiff for the issues of false imprisonment and arrest; battery; assault; and the violation of the plaintiff’s s. 7 and s. 9 Charter rights. Alternatively, it was argued that the re-litigation of these issues would constitute an abuse of process.
[7] At the outset of argument on the motion, the plaintiff abandoned his argument on issue estoppel and focussed his submissions on abuse of process.
[8] The thrust of the plaintiff’s argument is that the judgment of Justice Perkins-McVey decides the legal and factual questions regarding the arrest and treatment of the plaintiff, and relitigating those same questions in a separate judicial forum would constitute an abuse of process. In counsel’s words, the defendants want to “have another go at it.”
[9] In support of his submission, he relies heavily on the Supreme Court of Canada decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“C.U.P.E.”), where at para. 37 Arbour J. stated:
37 In the context that interests us here, the doctrine of abuse of process engages “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” (Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
One 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. [Emphasis added.]
As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but 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, for example, Franco v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391 (C.A.); Bomac Construction Ltd. v. Stevenson, 1986 3573 (SK CA), [1986] 5 W.W.R. 21 (Sask. C.A.); and Bjarnarson v. Government of Manitoba (1987), 1987 993 (MB QB), 38 D.L.R. (4th) 32 (Man. Q.B.), aff’d (1987), 1987 5396 (MB CA), 21 C.P.C. (2d) 302 (Man. C.A.).) This has resulted in some criticism, on the ground that the doctrine of abuse of process by relitigation is in effect non-mutual issue estoppel by another name without the important qualifications recognized by the American courts as part and parcel of the general doctrine of non-mutual issue estoppel (Watson, supra, at pp. 624-25).
[10] I disagree with the plaintiff’s submission that to allow the defendants an opportunity to dispute liability for some of this civil claim would be, in essence, an attempt to relitigate a claim which a court has already determined.
[11] We start with the basic point that the defendants were not parties to the criminal proceeding; two of them were witnesses. They did not have counsel acting on their behalf. As clearly stated in the reasons of Justice Perkins-McVey at para. 10: “In this trial the central issue is whether the Crown has established the elements which constitute the offences beyond a reasonable doubt given the prescribed legal principles.” She determined they had not and an acquittal followed. None of the causes of action relevant to this motion were before her. The witnesses in the criminal trial, the now defendants Lepage and Frenette, were, of course, not put to their defence, nor was any verdict rendered against them. It is not, in my view, an abuse of process to allow defendants to defend themselves for the very first time against the civil remedies sought.
[12] In the C.U.P.E. case, a primary concern of the court was that the proceeding was a collateral attack on a criminal conviction. That, obviously, is a legitimate concern in cases such as C.U.P.E. where the individual who was found to have attempted the collateral attack was a party to the original proceedings, was fully defended during the course of those proceedings, and had the opportunity to avail himself of the appeal process. The defendants in this case have had no such opportunity.
[13] It is acknowledged that the doctrine of abuse of process in this context is not determined by whether the use of the prior criminal verdict is characterized as offensive or defensive, but will depend, rather, on the application of the principles as a whole set out in C.U.P.E..
[14] It is important to note that the verdict of the trial judge in the Ontario Court of Justice is not under attack in this case. The defendants do not seek to relitigate that issue. The issue they wish to litigate is whether or not the specified causes of action have been made out against them on a balance of probabilities. As part of that determination, the defendants ought to be entitled to advance defences available to them. By way of example, the materials and argument of the defendants suggest that there appears to be a triable issue as to whether or not the defendants have a defence of parliamentary privilege. Relying on the Supreme Court of Canada decision in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, the defendants argue that as a Canadian legislative body they have an inherent privilege to exclude strangers from their House and precincts, and that courts should not intervene to review the rightness or wrongness of a particular decision made pursuant to that privilege.
[15] As non-parties in the criminal proceedings, the defendants did not have a full opportunity to advance that or any other justification for their actions. It would be unfair to deny them their right to advance this defence.
[16] In all the circumstances, I am satisfied that allowing the defendants the opportunity to defend would not bring the administration of justice into disrepute or be detrimental to the adjudicative process, in fact quite the opposite.
[17] I am not satisfied on the materials that the plaintiff has met his burden of demonstrating there is no genuine issue requiring a trial, and the motion is dismissed.
[18] There were no submissions made as to costs. If counsel are unable to agree in this regard, they may make brief written submissions.
Mr. Justice J. McNamara
Released: January 22, 2014
Budgets and Administration), 2014 ONSC 520
COURT FILE NO.: CV-13-58274
DATE: 2014/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Terry J. Stavnyck
Plaintiff/Moving Party
– and –
Standing Committee on Internal Economy, Budgets and Administration, Stephane Lepage and Jean Philippe Frenette
REASONS FOR DECISION
ON MOTION FOR SUMMARY JUDGMENT
McNamara J.
Released: January 22, 2014