CITATION: Valeri et al. v. Wills, 2015 ONSC 3286

COURT FILE NO.: 04-CV-263770CM1
DATE: 20150522

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

OTTAVIANO VALERI, ELISA VALERI, JOHN VALERI, DOMINIC MARIANI, MICHAEL MARIANI and THE ESTATE OF LINDA MARIANI

Plaintiffs

-AND-

RICHARD WILLS

Defendant

BEFORE: F.L. Myers J.

COUNSEL: David C. Moore for the plaintiffs

Richard Wills by video conference representing himself

HEARD: May 22, 2015

ENDORSEMENT

[1] The plaintiffs are the estate and family of Linda Mariani. The defendant murdered Linda Mariani on February 15, 2002. In this action, the plaintiffs seek damages against the defendant for the wrongful death of their loved one. On this motion, the plaintiffs seek summary judgment for liability only at this time.

[2] Pursuant to case management orders of Himel J., the defendant appeared at the motion by video conference from his penitentiary in British Columbia.

[3] After a trial before the Superior Court of Justice, on October 31, 2007 a jury found the defendant guilty of the first degree murder of Ms Mariani.

[4] The verdict was upheld by the Court of Appeal for Ontario by endorsement dated June 15, 2011 that is reported at 2011 ONCA 468. The Court of Appeal described the key factual issues in the criminal trial as follows:

[3] On June 7, 2002, the appellant turned himself in to the police and revealed that Ms. Mariani’s body was in his basement and had been there since mid-February of that year. In his testimony at trial, he claimed that she had died accidentally in a fall and that he had entombed her body as an act of love with a view to removing it to his cottage in Wasaga Beach where she had requested that she be buried.

[4] The Crown presented a different theory, namely that Ms. Mariani was in the process of exiting the relationship and the appellant would have none of that. As a result, he decided to kill her. To that end, he bought a garbage pail and other supplies and planned to entomb her body after killing her in the hopes of escaping detection. Following Ms. Mariani’s death, the appellant took steps to mislead the police and others both as to his knowledge of her death and the whereabouts of her body. In addition, he tried to point the finger of suspicion at Ms. Mariani’s husband.

[5] By its verdict, it is apparent that the jury rejected the appellant’s evidence and accepted the position put forward by the Crown.

[5] The Court of Appeal provided the following analysis:

[9] On our view of the record, the appellant viewed the court process with disdain and did everything he could to subvert it and make a mockery of the proceedings. He was not interested in receiving a fair trial or indeed any trial. His strategy from start to finish was to delay and obstruct the course of justice and derail the trial if possible. To that end, he hired and fired lawyers at will; he engaged in obstructive trial tactics that turned the trial process into an 18-month ordeal; he brought on countless motions that were largely devoid of merit and in many instances, frivolous and vexatious; he engaged in appalling courtroom antics and he did his best at every turn to bait the trial judge into declaring a mistrial or committing reversible error.

[10] Fortunately, the learned trial judge saw through the appellant’s strategy and was able to rise above it. Although she was firm when necessary, and correctly so, she treated the appellant with respect and dignity throughout and did everything in her power to ensure that he received a fair trial. This took admirable restraint on her part for which she is to be commended.

[11] As indicated, we are satisfied that the trial judge’s rulings on process were fair to both sides and her evidentiary rulings, which were largely discretionary in nature, discloseno reversible error. Her charge was a model of clarity, fairness and balance and we are satisfied that the jury was properly equipped to carry out its duty.

[12] In our view, the verdict is entirely reasonable and amply supported by the evidence. There has been no miscarriage of justice here. As we have said, the appellant received a fair trial and we see no basis for appellate intervention.

[6] The plaintiffs seek summary judgment on the basis that the Supreme Court of Canada has held that presumptively a defendant will not be allowed to contest a criminal conviction in a civil case. Exceptions exist. But none is applicable in this case they say. Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.) Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. Moreover, they argue that this issue does not require a trial and can be fairly resolved by summary judgment. Hryniak v. Mauldin, 2014 SCC 7.

[7] I agree with all of these points.

[8] The principal issue discussed by the Supreme Court of Canada in CUPE is that relitigating cases should not be allowed where doing so will be detrimental to the adjudicative process. Especially where the initial decision has been subject to an appeal, it is desirable to avoid relitigation unless doing so is necessary to enhance the credibility and effectiveness of the process as a whole. The Court provided two non-exhaustive lists of circumstances in which relitigation might be acceptable. All involve cases in which the fairness of the prior judicial decision might be in doubt.

[9] Nothing could be further from the case in this action. I agree with the plaintiffs’ counsel who argues that relitigating this case would itself be an injustice. The defendant was convicted of the very things sought to be proven against him in this civil case. He was convicted despite his own despicable conduct at his criminal trial. Nevertheless, and despite the defendant’s effort to undermine the criminal trial process, both the trial judge and the Court of Appeal took pains to ensure that the process was fair and proper for him. The defendant delivered no evidence for this motion. Nothing in his oral or written submissions raised any issue as to the fairness of the prior process.

[10] At para. 54 of CUPE, the Supreme Court of Canada made a specific note that questioning a criminal conviction is a very serious matter. While the entire justice system needs to be equipped to try to prevent wrongful convictions, relitigating criminal cases in a civil context is not an appropriate method to do so.

[11] The defendant argued that because he was not served with process in this action until more than two years had elapsed from the date he committed the murder, the action was statute barred by the running of the applicable limitation period. Even assuming that the date of the murder was the date on which the limitation period commenced running (rather than the date of the defendant’s arrest or his conviction, for example) and assuming a two year limitation period (although the cause of action might have arisen prior to January 1, 2004), this action was nevertheless commenced within the two years of the date of the murder. The fact that process was served thereafter in accordance with the Rules of Civil Procedure is of no consequence in respect of the limitation period. The defendant committed the murder on February 15, 2002. This action was commenced on February 13, 2004. There is no serious issue requiring a trial on the limitation period.

[12] The defendant then says that while he acknowledges that he caused the death of Ms Mariani, he says that there was forensic evidence at trial that shows that he did not do it in the manner asserted by the Crown. The Court of Appeal dealt with this exact question in paras. 3 to 5 of its endorsement set out above. The defendant repeats bald factual assertions in unsworn submissions. He raises no issues casting any doubt at all on the fairness and propriety of the criminal process either at trial or on appeal.

[13] The defendant raises no basis as well for the exercise of any discretionary limit on the doctrine of abuse of process in this case.

[14] The defendant says that he has been denied access to his boxes of legal material that would have assisted him in this motion. When asked by me what he needed, he said that he wanted to prove the date of service of the originating process upon him. As noted above, the date of service of process is not relevant to the determination of the limitation period. He also said that he wanted his material to try to rebut allegations made by the Crown at trial. That too is irrelevant now. Absent evidence casting doubt on the fairness of the prior adjudicative process along the lines of the matters listed by the Supreme Court of Canada, this is not the forum to question the jury’s verdict.

[15] In all, I am satisfied on the material before the court and considering both the defendant’s written and oral submissions, that I can find the facts and apply the law to the facts so as to make summary judgment a fair and just process for resolving the issue of liability in this action.

[16] It would be an abuse of the adjudicative processes of this court were the defendant allowed to relitigate his conviction or the facts underlying his conviction in this case. Doing so would cast doubt on the credibility of the criminal process without any basis to do so. Moreover, requiring the plaintiffs to have to hear the defendant repeat his allegations yet again would be cruel.

[17] Therefore, summary judgment is granted in favour of the plaintiffs against the defendant for the wrongful death of Linda Mariani.

[18] The plaintiffs may prove their damages by motion to a judge. On consent of the defendant, the affidavits of the plaintiffs and any other affidavits in support of the motion for damages shall be treated as confidential, sealed, and not form part of the public record unless or until a judge orders otherwise. I am cognizant of the fact that this action may have some public interest in light of the notoriety of the murder of Ms Mariani and the criminal trial of the defendant. However, the pleadings and judgments of the court will satisfy the public’s legitimate right to know. Prurient curiosity of the private grief and financial plight of each plaintiff is different. In my view, the plaintiffs satisfy the balancing test in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41.

[19] Costs reserved to the judge deciding the damages issues.

[20] Mr. Moore has agreed to forward a copy of this endorsement to the defendant. He had previously undertaken to Himel J. to assist the defendant by providing certain materials to him

and by filing with the court the defendant’s written submissions in a proper motion record. The court is appreciative of Mr. Moore’s efforts and his professionalism in trying circumstances.

________________________________ F.L. Myers J.

Date: May 22, 2015