Criminal convictions conclusive for subsequent civil claims on same facts -- important Ontario appeal decision

Civil claims arising out of criminal actions are common. Thus a civil claim for sexual assault can arise out of the same set of facts which grounded a criminal charge.

It has long been accepted that a criminal conviction (as opposed to a dismissal) provided prima facie proof of the facts underlying the criminal conviction. That said, many have argued (with some success) that the conviction does not forbid argument that the civil case still needs to be proven independently.

The basis for this argument usually is the decision of the Divisional Court in Taylor v. Baribeau (1985), 51 O.R. (2d) 541, where it was held that a criminal conviction is only prima facie proof of the defendant's negligence, that the findings of fact in support of a conviction are not admissible as evidence in the related civil proceedings, and that the doctrine of abuse of process has no application in civil proceedings.

Yesterday's Court of Appeal decision in Caci v. Dorkin, 2008 ONCA 750 makes it very clear this argument no longer has legs. Relying on Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 the Court holds a verdict in the criminal case and the findings essential to that verdict are conclusive in the civil proceedings (there may be some wiggle room in the language but not much - a criminal conviction after trial seems to end the debate).

The Court writes:

[9] The appellant does not quarrel with the trial judge's decision admitting MacArthur's conviction for dangerous driving causing bodily harm. It submits, however, that the trial judge erred in his application of the abuse of process doctrine. It relies upon the decision of the Divisional Court in Taylor v. Baribeau (1985), 51 O.R. (2d) 541, where it was held that a criminal conviction is only prima facie proof of the defendant's negligence, that the findings of fact in support of a conviction are not admissible as evidence in the related civil proceedings, and that the doctrine of abuse of process has no application in civil proceedings.

[10] Further, the appellant submits that the abuse of process doctrine had no application because the appellant was not attempting to relitigate MacArthur's negligence but rather show that Dorkin was also negligent, a theory not at issue in MacArthur's criminal trial. It submits that the effect of the trial judge's ruling was to preclude it and MacArthur from adducing evidence of speed of the MacArthur and Dorkin vehicles that would have demonstrated that Dorkin was at least partially responsible for the accident.

[11] Finally, the appellant, relying upon Taylor and this court's decision in Franco v. White (2001), 53 O.R. (3d) 391, submits that where, as here, a party attempts to use proof of a prior conviction for offensive purposes to establish liability it is only prima facie proof of negligence. It submits that it is only where the conviction is used defensively to resist a claim by a convicted party that relitigation is precluded.

[12] I can deal briefly with the decision in Taylor. Taylor was decided before the decision in C.U.P.E., where the court clarified and explained the application of the doctrine of abuse of process. To the extent that Taylor holds that the criminal conviction is only prima facie proof of negligence and that the findings of fact in support of the conviction are never admissible, it has been overtaken by C.U.P.E. and decisions of this court, especially Hanna v. Abbott (2006), 272 D.L.R. (4th) 621.

[13] I am also of the view that the distinction drawn between offensive and defensive uses of the prior criminal conviction is inconsistent with C.U.P.E. Whether or not the person convicted may be precluded by the doctrine of abuse of process from contesting the underlying facts will depend on the application of the principles set out in C.U.P.E. and not simply upon whether the use is characterized as offensive or defensive. I note that this court in Franco, while referring to the line of authority that had drawn such a distinction, held at para. 31 that it was unnecessary to consider whether the abuse of process doctrine "should be extended beyond its apparent present limits". As a result of C.U.P.E., the law of abuse of process has been explained and extended beyond the limits referred to in Franco. In particular, in C.U.P.E., Arbour J. speaking for the court at para. 47 held that there is "no reason to constrain the doctrine of abuse of process only to those cases where the plaintiff has initiated the relitigation" (i.e. the defensive use of the doctrine). Also see the discussion of this issue at para. 49 of the C.U.P.E. decision.

[14] As explained in C.U.P.E., the abuse of process doctrine engages the court's inherent power to prevent the administration of justice from being brought into disrepute. In the context of a case such as this where the court must consider the evidentiary effect of a prior conviction, the issue is "whether relitigation would be detrimental to the adjudicative process": C.U.P.E., at para. 45.

[15] In my view, the trial judge properly applied the principles from C.U.P.E. in holding that the verdict in the criminal case and the findings essential to that verdict were conclusive in the civil proceedings. To permit MacArthur or the appellant, whose interest was identical to MacArthur, to relitigate the issue of negligence and the findings essential to that verdict would undermine the integrity of the adjudicative process. MacArthur 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, MacArthur had a full opportunity to defend the allegation of negligence in circumstances where he had every reason to mount a complete defence.