Court File and Parties

COURT FILE NO.: 13-58052-A1 DATE: 2017/03/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSHUA PROULX, DAVID PROULX, BRENDA PROULX and AMANDA PROULX, Plaintiffs AND BENOIT LAFERRIÈRE, CHARLES LAFERRIÈRE and CALYPSO THEME WATERPARK, Defendants AND MIGUEL VILLENEUVE Third Party (moving party)

BEFORE: C.T. Hackland J.

COUNSEL: Mark W. Smith, for the Plaintiffs Ms. S. Gomery, for the Defendant, Calypso Theme Waterpark Mr. H. Yegendorf for the Defendants Benoit Laferrière and Charles Laferrière Mr. D. Cadieux for Third Party, Miguel Villeneuve (moving party)

HEARD: March 10, 2017

Endorsement

[1] The Third Party, Miguel Villeneuve, brings this motion for summary judgment under Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, arguing that the Third Party claims against him, by the defendants, Benoit and Charles Laferrière (the “Laferrière defendants”) and by the defendant, Calypso Theme Waterpark (“Calypso”), are an abuse of process and should be struck.

[2] For the reasons discussed below, I agree with the moving party’s argument and would strike the two Third Party claims.

[3] This is a personal injury action in which the plaintiff, Joshua Proulx, alleges that he suffered serious head injuries when he was assaulted by the Laferrière defendants in the parking lot of the Calypso Theme Waterpark, a business operated by the defendant, Calypso. A fight developed involving two groups of young people. A central issue is who assaulted the plaintiff and caused the injuries the plaintiff alleges. This action has not yet proceeded to examinations for discovery.

[4] The Laferrière defendants have admitted being involved in a brawl with the plaintiff but in their Third Party claim, they plead that the third party, Miguel Villeneuve, struck the plaintiff in the head with a closed fist, rendering him unconscious. They plead at paragraph 5 of their claim:

Benoit and Charles state that all or most of the injuries suffered by Joshua Proulx in the brawl were caused by the blow to the head and/or face delivered by the Third Party Miguel Villeneuve, and not by any actions on the part of Benoit and/or Charles.

[5] In making these allegations, the third party, Miguel Villeneuve, says that they are inconsistent with and indeed in direct contradiction to the findings of fact made by Justice Legault of the Ontario Court of Justice who presided over the criminal trial of charges laid against the Laferrière defendants in relation to this incident.

[6] Specifically, following the incident, Benoit Laferrière was charged with assaulting the plaintiff and Charles Laferrière was charged with assault causing bodily harm, also with regard to the plaintiff. On May 22, 2012, the Laferrière defendants were convicted on the charges and were subsequently sentenced. The convictions were not appealed.

[7] In Demeter v. British Pacific Life Insurance Company, (1983) 150 DLR (3d) 249, Justice Osler held that prior criminal convictions are generally admissible in subsequent civil proceedings and are considered prima facie proof of the material facts underlying the conviction. See also 124558 Canada Inc. v. Cie d’Assurance Guardian et Cie d’Assurance Royale, 1999 QCCA 13177 and Canadian Tire Corp. v Summers (1995) 54 A.C.W.S. (3d) 695, at para. 20. This is codified in s. 22.1 of the Ontario Evidence Act, R.S.O. 1990, c. E.23:

22.1 (1) Proof that a person has been convicted or discharged anywhere in Canada is proof, in the absence of evidence to the contrary, that the crime has been committed by the person, if,

a) No appeal of the conviction or discharge was taken and time for an appeal has expired; or

b) An appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.

(2) Subsection (1) applies whether or not the convicted or discharged person is a party to the proceeding.

[8] The following excerpts from Justice Legault’s reasons for judgment in the criminal trial make it clear that on all the evidence, including that of Benoit and Charles Laferrière, who both testified, that the only persons fighting with Joshua Proulx were Benoit and Charles Laferrière and that Charles Laferrière was the person who caused bodily harm to Mr. Proulx by striking him in the head:

« Dans ma décision que j’ai relue encore une fois ce matin, j’ai trouvé sur les faits que Benoit avait assigné un coup de poing surnois au visage de Joshua Proulx, une personne qui était déjà impliquée dans une bataille avec un autre, dans ce cas ici, le frère de Benoit, Charles. »

« [sic] Je suis arrivé à la conclusion que les blessures subies par Joshua Proulx étant dans le contexte d’une bataille consensuelle entre lui et Charles Laferrière. Monsieur Proulx était plus grand que monsieur Laferrière. Il s’agit de coups de poing au visage. Monsieur Proulx a subi des séquelles importantes en raison du voie de fait et des coups de poing qu’il a subis de monsieur Charles Laferrière. »

[9] As can be seen, the trial judge makes no mention of Mr. Villeneuve and concludes that the injuries sustained by Mr. Proulx were caused by the punches inflicted upon him by Mr. Laferrière.

[10] The Laferrière defendants are attempting, by way of a Third Party claim, to launch a collateral attack on the findings of the criminal court judge. This is an abuse of process and will not be permitted. As stated by the House of Lords in Hunter v. Chief Constable of West Midlands Police et al., [1982] A.C. 529, quoted in Demeter, “the use of a civil action to initiate a collateral attack on a final decision of a criminal court of competent jurisdiction is an attempt to re-litigate an issue already tried, is an abuse of the process of the court”. The defendant, Benoit Laferrière, filed an affidavit asserting essentially that he gave false and incomplete evidence at his criminal trial on the advice of his criminal lawyer. I reject this outright and disregard it completely. The Laferrière defendants also filed the affidavits of two young women in their group who both depose that the Third Party. Miguel Villeneuve, “punched one of the men in the face very hard,” without identifying who was punched. These affidavits are of no help to the court.

[11] The defendant Calypso also issued a Third Party claim against Miguel Villeneuve on the same basis as the Third Party claim issued by the Laferrière defendants and accordingly it cannot stand as it is an abuse of process for the same reasons. However, these reasons are not intended to preclude Calypso from advancing a Third Party claim against Miguel Villeneuve on grounds other than that he assaulted the plaintiff, should they see fit to do so.

[12] In summary, the Third Party claims of the defendants relating to Miguel Villeneuve striking the plaintiff, Joshua Proulx, are struck as against the moving party, Miguel Villeneuve.

[13] Should Mr. Villeneuve wish to claim costs of this motion against the defendants, he is to provide a brief written submission within 14 days of the release of this endorsement and the defendants may respond within 14 days of receiving the moving party’s submission.

Mr. Justice Charles T. Hackland Date: March 15, 2017