ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-22-00001874-0000

DATE: 20221116

BETWEEN:

Pauline Lambert and Louise Bazley

Plaintiffs

– and –

Louis Lambert

Defendant

Mary Grosso, for the Plaintiffs

Evan L. Tingley, for the Defendant

HEARD: November 2, 2022

EDWARDS, RSJ.

Overview

[1] The Plaintiffs, who are the defendant’s daughters. move for partial Summary Judgment on liability against the Defendant, Louis Lambert. Liability is grounded in a plea of guilty made by the Defendant to charges of indecent assault against the Plaintiffs.

[2] While the Court of Appeal has made clear that partial summary judgement should only be reserved for the “clearest” of cases these reasons will explain why in the context of a civil claim for sexual assault where the defendant has pleaded guilty it would be a rare case where partial summary judgement would not be granted.

The Facts

[3] This matter arises from sexual assaults perpetrated by the Defendant, as against the Plaintiffs, between 1967 and 1975.

[4] On March 22, 2004, the Defendant, pleaded guilty to three counts of indecent assault against the Plaintiffs, and was sentenced to eighteen months to be served in the community.

[5] A sentencing hearing took place over three days in August 2004, the Reasons of Boyko, J. reflect the nature of the sexual abuse perpetrated against the Plaintiffs by the defendant:

[1] The defendant pled guilty to three counts of indecent assault involving his sister and his two biological daughters from his first marriage. These offences occurred some 25-30 years ago.

[2] His daughter L.L. recalled that at the age of eight, her father removed her clothes from the waist down and tried to penetrate her, he rubbed against her, and she could not recall if he ejaculated. She then recalled regular incidents of abuse after her parents separated when during every weekend visit to her father, he would abuse either her or her sister, until she was fourteen or fifteen years old at which time, she refused to visit him at his home. She and her sister slept in the same bed with their father; he slept between them and would choose nightly which daughter he would engage in sexual acts with. When her sister was being abused, she recalled feeling the bed move and hearing her sister crying and saying, "No". On nights when her father abused her, he would first snuggle up to her from behind, naked, and would remove her clothing and rub his penis against her buttocks until he ejaculated. On occasion he would stop rubbing against her if she was crying and asking him to stop; he would then masturbate himself until he ejaculated. Her father had been drinking on many evenings that he abused her.

[3] P.L. recalled that when she was six years old and still living with her mother, he once took her into his bedroom and had her lie down with her legs dangling over the edge of the bed and after removing both their clothing, he would kneel down and attempt to penetrate her vaginally. She recalled crying and asking him to stop which he eventually did and told her not to tell anyone, that it was their little secret. After her parents separated and she visited him on weekends, the abuse resumed in the bed she and her sister shared with their father. He often came to bed having consumed alcohol, come up behind her in bed, put his penis between her buttocks and rub himself against her until he ejaculated. On the evening he didn't do this to her he did so to her sister; she could hear her sister crying and feel the bed moving.

[4] Both daughters recalled this occurred weekly over several years during their weekend visits to their father's residence until they refused to visit him again.

Position of the Plaintiffs

[6] The plaintiffs argue that with the application of Section 22.1 of The Evidence Act 1990, c. E.23, the defendant’s plea of guilty and the convictions registered for indecent assault constitutes an irrefutable basis upon which the court can make a finding of civil liability. Furthermore, the plaintiffs argue it would be an abuse of process to allow the defendant to maintain a denial of liability as reflected in the defendant’s statement of defence.

Position of the Defendant

[7] The defendant takes the position that this is not one of the clearest of cases where the Court should allow partial summary judgement. The defendant argues that there will still have to be a trial where the defendants will have to prove their damages and that the damages claimed were caused by the actions of the defendant. The defendant also argues that his plea of guilty will not automatically result in a finding of civil liability.

The Applicable Legal Principles

[8] Section 22.1 of the Evidence Act creates a statutory mechanism by which the proof of a person's prior conviction operates as proof in a subsequent proceeding that the offence was factually committed by that person. I reproduce S 22.1 below:

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

(a) no appeal of the conviction or discharge was taken and the 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.

(3) For the purposes of subsection (1), a certificate containing the substance and effect only, omitting the formal part, of the charge and of the conviction or discharge, purporting to be signed by the officer having the custody of the records of the court at which the offender was convicted or discharged, or by the deputy of the officer, is, on proof of the identity of the person named as convicted or discharged person in the certificate, sufficient evidence of the conviction or discharge of that person, without proof of the signature or of the official character of the person appearing to have signed the certificate.

[9] In the context of a civil action, the proof of a person's prior conviction constitutes proof of both the verdict and of the "essential facts" of the offence. As reflected in the reasons of D. Brown J (as he then was) in Andreadis v Pinto 2009 50220 (ON SC), [2009] O.J. No 3910 at para 14:

[P]roof of the conviction can be tendered in evidence that the person convicted had engaged in certain acts, with a certain state of mind. The section dispenses with the need to prove, in a civil proceeding, the essential facts established by the finding of liability in a criminal proceeding.

[10] The doctrine of abuse of process bars a convicted person from re-litigating the essential facts of the offence. Furthermore, the convicted person cannot adduce any evidence contrary to the essential facts of the conviction, nor can he/she adduce any evidence to displace the conviction-see Caci v. MacArthur, 2008 ONCA 750, [2008] O.J. No. 4436 at paras. 1, 7 and 15 (C.A.) and Andreadis at para 42.

[11] In Caci the Court of Appeal held at para 15 that the abuse of process doctrine applied to prevent a defendant in a civil action arising from a motor vehicle collision who had been convicted of dangerous driving under the Criminal Code from re-litigating the conviction and its essential facts:

To permit [the defendant] or the appellant, whose interest was identical to [the defendant], to relitigate the issue of negligence and the findings essential to that verdict would undermine the integrity of the adjudicative process. [The defendant] had been found to have committed dangerous driving, an offence of negligence at least as high if not higher than civil negligence. Further, that negligence had been proved to the criminal standard of proof beyond a reasonable doubt. Finally, [the defendant] had a full opportunity to defend the allegation of negligence in circumstances where he had every reason to mount a complete defence.

[12] The approach to be taken by the Court on a summary judgment motion has been articulated by the Supreme Court of Canada in Hryniak v. Mauldin 2014 SCC 7, at para 48 that there is no genuine issue for trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. Hryniak also makes clear that the rules governing motions for summary judgment motions must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims.

[13] As it relates to motions for partial summary judgement the Court of Appeal in Butera v Chown Cairns LLP 2017 ONCA 783 at para 29-33 has held that motions for partial summary judgment raise further problems and are contrary to the stated objectives underlying Hryniak” because :

(a) They cause the resolution of the main action to be delayed.

(b) They may be very expensive.

(c) Judges are required to spend time adjudicating an issue that does not dispose of the action; and

(d) The limited record increases the danger of inconsistent findings.

[14] The Court of Appeal in Butera at para 34 concluded that:

A motion for partial summary judgment should be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.

[15] While the plaintiffs may be able to establish the liability of the defendant based on his admission of guilt and the convictions registered for indecent assault, the plaintiffs will still have the burden of establishing their damages and that the damages were caused by the actions of the defendant. The plaintiffs will have that burden on a balance of probabilities.

The Legal Principles Applied

[16] The defendant argues that partial summary judgement should not be granted as these types of motions are discouraged by the Court of Appeal as only adding extra expense and time to an already overburdened civil justice system. Butera does not however stand for the proposition that partial summary judgement should never be granted. At para 34 of her reasons Pepall, J.A. makes clear that motions for partial summary judgement should be considered “to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner.”

[17] Where an accused pleads guilty to an offence, with or without legal counsel, the court may accept the plea only when the court is satisfied that the accused – in this case the defendant, made the plea voluntarily and that the accused understands that the plea is an admission of the essential elements of the offence and that the facts support the charge-see S.606 (1.1) of the Criminal Code of Canada. There is nothing in the evidence that would suggest that the defendant did not freely and of his own volition plead guilty to the charges of indecent assault. His plea of guilt is an admission. Section 22.1 of The Evidence Act is designed and intended for circumstances such as presented in this case. It would be an abuse of process to allow the defendant to take a contrary position in this civil action to the one he presented to the Court when he pleaded guilty.

[18] The defendant contrary to the position he presented to the court in the criminal proceedings now asserts in his Statement of Defence a complete denial of the allegations made by the Plaintiffs. In his Statement of defence at para 1 the defendant pleads as follows: “Unless otherwise specifically admitted all allegations set forth in the Statement of Claim are denied and the defendant asks that the Plaintiffs be put to the strictest of proof of all allegations not admitted”

[19] While the defendant is perfectly entitled to plead (as he does in his statement of defence) that the plaintiffs damages may not have been caused by his indecent assaults, in my view it is an abuse of process to allow the defendant to continue to deny the basis for his civil legal liability. While the trial on liability, were it to proceed (in the absence of this motion) would undoubtedly be short given the application of S 22.1 of The Evidence Act, plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a nonissue. This is particularly so where the defendant has pleaded guilty in a criminal court.

[20] Where a defendant has plead guilty to an offence of sexual assault and a conviction has been registered the definition of “the clearest” of cases and “the rare “case is in my view amply met and partial summary judgement should follow. The granting of partial summary judgement in this type of case properly bifurcates the issue of liability from the issues of damages and causation.

[21] The defendant notes in both his factum and his statement of defence that he is the 84-year-old father of the plaintiffs and that he resides in a long-term care home suffering from dementia. It is entirely appropriate for the Plaintiffs to know now that the issue of liability was decided in 2004 when the defendant entered a plea of guilty. It is equally important that the defendant understand now, and not later, that liability is no longer an issue. The only issues to be decided at trial (absent a common sense resolution) are the issues of damages and causation.

[22] The Plaintiffs motion for partial summary judgement is granted. There will be a finding of liability against the defendant. The plaintiffs are entitled to their costs of this motion. At the hearing of the motion counsel for the Plaintiffs suggested a reasonable cost award to the successful party would be $2,500. Counsel for the defendant did not take issue with that figure. I therefore award the plaintiffs costs fixed in the amount of $2,500 which costs are payable forthwith.

EDWARDS, RSJ.

Released: November 16, 2022