Friday, April 22, 2011

Reasons from a prior hearing are admissible, if relevant, in evidence as prima facie proof of findings and conclusions

British Columbia (Attorney General) v. Malik, 2011 SCC 18, released yesterday, makes clear that earlier court decisions are admissible as proof of their findings and conclusions. The rule from Hollington v. F. Hewthorn & Co., [1943] 1 K.B. 587, that such decisions were inadmissible as mere hearsay, is overturned.

More generally, a judgment of a prior civil or criminal case is admissible, if relevant, as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. 

This last point, the identity of parties, is interesting because the logic of the decision does not require the parties to be the same. Quaere if this requirement will continue?

The weight to be given to the earlier decision will rest not only on the identity of the participants, the similarity of the issues, the nature of the earlier proceedings and the opportunity given to the prejudiced party to contest it but on all the varying circumstances of the particular case. 

The issue of admissibility is separate and distinct from whether, once admitted, the prior decision is conclusive and binding.  The prejudiced party or parties will have an opportunity before the reviewing judge to lead evidence to contradict the earlier findings or lessen their weight unless precluded from doing so by the doctrines of res judicata, issue estoppels or abuse of process.

The Court held:

[37]                          The admissibility of prior civil or criminal judgments in subsequent civil proceedings, and the effect to be given to them, must be seen in the broader context of the need to promote efficiency in litigation and reduce its overall costs to the parties.  The doctrines of res judicata, issue estoppel and abuse of process are all part of this larger judicial policy but they do not exhaust its potential.

[38]                          It seems clear the Rowbotham judgment was properly put before the chambers judge.  He was entitled to take judicial notice of prior decisions of the court.  Then there is the public documents (or official written statement) exception to the hearsay rule:  McCormick on Evidence (5th ed. 1999), vol. 2, at § 295.  Moreover, it was incumbent on the Province to make "full and frank disclosure of all material facts" to the chambers judge (Celanese Canada, at para. 37).  This requirement included drawing the court's attention to the Rowbotham decision.  Further, as the Province points out, the Rowbotham proceeding was itself pleaded as a step in the alleged Malik family conspiracy to defraud the Province.  In this aspect, the judgment was tendered for the purpose of proving the fact that the proceedings were taken by Mr. Malik, and supported by testimony from his family.  In this latter respect, the fact the proceeding itself was taken is not hearsay: R. v. Smith, [1992] 2 S.C.R. 915, at pp. 924-25.

[39]                          All of this, of course, does not carry the Province very far.  The mere fact the Rowbotham decision was properly before the chambers judge does not determine what use may properly be made of it.  In my view the chambers judge was not required to proceed as if the Rowbotham judgment was of merely historical interest and of no probative value to the Anton Piller application (apart from the Court of Appeal's "three facts").

[40]                          In a number of decisions our Court had emphasized a public interest in the avoidance of "[d]uplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings" (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 18).  Inefficient procedures not only increase costs unnecessarily, but result in added delay, and can operate as an avoidable barrier to effective justice:

Where the same issues arise in various forums, the quality of justice delivered by the adjudicative process is measured not by reference to the isolated result in each forum, but by the end result produced by the various processes that address the issue.

(Toronto (City) v. Canadian Union of Public Employees, Local 79 (2001), 55 O.R. (3d) 541 (C.A.), per Doherty J.A., at para. 74, aff'd 2003 SCC 63, [2003] 3 S.C.R. 77 (sub num. Toronto (City) v. C.U.P.E., Local 79), at para. 44)

When Toronto (City) v. C.U.P.E., Local 79 reached this Court, Arbour J. pointed out that the judicial concern about duplicative litigation operates equally against a plaintiff or a defendant: "I cannot see what difference it makes" (para. 47).  At issue in those cases were the doctrines of res judicata, issue estoppel and abuse of process.

[41]                          Danyluk concerned a civil action by a disgruntled employee whose claim under the Employment Standards Act, R.S.O. 1990, c. E-14, had already been dismissed by a government adjudicator.  The employer asked for dismissal on the basis of issue estoppel.  The Court held that the doctrine of issue estoppel must be applied flexibly, and that from a fairness perspective the employee should be permitted to relitigate the claims arising out of her employment because "[i]t is unlikely the legislature intended a summary procedure for smallish claims to become a barrier to closer consideration of more substantial claims" (para. 78). On the other hand, Toronto (City) v. C.U.P.E., Local 79, applied the doctrine of abuse of process, notwithstanding different parties, to prevent the relitigation of a criminal conviction of a municipal employee for sexual abuse of a child in his care.  The issue resurfaced in a subsequent grievance arbitration by the employee, who had been fired following his conviction. The respondent City filed before the arbitrator not only a certificate of conviction but a transcript of the boy's evidence at the criminal trial.  (The child did not testify at the arbitration.)  In holding the arbitrator bound by the earlier criminal proceedings, Arbour J. offered three observations on why relitigation is generally undesirable:

First, there can be no assumption that relitigation will yield a more accurate result than the original proceedings.  Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly and additional hardship for some witnesses.  Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.  [para. 51]

[42]                          Of course the weight of the prior judgment will depend on such factors as the similarity of the issues to be decided, the identity of the parties, and (because of the differing burdens of proof) whether the prior proceedings were criminal or civil. As the Sopinka text points out:  "The fact that it is a civil judgment only would be significant in terms of weight.  The party against whom the judgment was rendered would have a greater opportunity to explain it or suggest mitigating circumstances" (Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd ed. 2009), at § 19.177). 

[43]                          Here it is objected that the Rowbotham issues are different from the fraud and conspiracy case, but Arbour J. in Toronto (City) v. C.U.P.E., Local 79, cited the decision of the Ontario Court of Appeal in Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1, where Houlden J.A. (dissenting on a different point) observed in the context of an appeal from a decision of a professional disciplinary body, that "lack of identity of issue goes to weight, not to admissibility" (p. 17).  Arbour J. also referred to Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. (1988), 47 D.L.R. (4th) 431 (B.C.S.C.).  In that case, it was held that it was an abuse of process for the defendants to deny that a certain transfer was fraudulent where that issue had been determined against them after a full and fair trial in a previous proceeding between different parties.

[44]                          The Province suggests that the Court of Appeal was influenced — although not expressly referring to it — by the so-called rule in Hollington v. F. Hewthorn & Co., [1943] 1 K.B. 587 (C.A.).  In that case, in which damages were claimed arising out of a motor vehicle accident, the English Court of Appeal ruled inadmissible in the subsequent civil action a certificate of conviction of the defendant driver for careless driving because "on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant" (p. 595).  In its country of origin this rule is "generally thought to have taken the technicalities of the matter much too far" (Arthur J.S. Hall & Co. v. Simons, [2000] U.K.H.L. 38, [2002] 1 A.C. 615, at p. 702, per Lord Hoffman).  The editor of Cross and Tapper on Evidence (12th ed. 2010), agrees.  After dismissing Hollington v. F. Hewthorn & Co. as a bundle of "indefensible technicalities" (p. 109), he comments that the "House of Lords might at some stage reconsider the matter in the light of the modern emphasis on fairness and the abuse of process, especially where the prejudiced party had a full opportunity to contest the finding against him in the earlier proceedings" (p. 110).  The editors of the Sopinka text appear to share the same view (§ 19.158).  To similar effect, see Jorgensen v. News Media (Auckland) Ltd., [1969] N.Z.L.R. 961 (C.A.), at p. 980, citing at p. 971 Harvey v. The King, [1901] A.C. 601 (P.C.), and at p. 974 McCormick on Evidence:

Probably the trend of evolution will be toward the admission generally against a present party of any judgment or finding in a former civil or criminal case if the party had an opportunity to defend.  The principles on which is founded the hearsay exception for official written statements would justify this extension.

In this appeal we are concerned only with the effect, if any, to be given to Hollington v. F. Hewthorn & Co. in interlocutory proceedings.  In my view the "rule" simply has no application at this stage of proceedings in British Columbia.  In addition to the general considerations already referred to, r. 51(10)(a) of the British Columbia Supreme Court Rules expressly permits the admission of hearsay on an interlocutory application (as does replacement r. 22-2(13), which  came into force on July 1, 2010 (Supreme Court Civil Rules, B.C. Reg. 168/2009)).
[45]                          I do not see how the "indefensible technicalities" of Hollington v. F. Hewthorn & Co., or their extension to interlocutory proceedings in a civil case are consistent with the concerns expressed by this Court in Toronto (City) v. C.U.P.E., Local 79, about the need to avoid an unnecessary multiplicity of proceedings.

[46]                          Whether or not a prior civil or criminal decision is admissible in trials on the merits — including administrative or disciplinary proceedings — will depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions.  On this point I agree with Del Core (which was not an interlocutory proceeding) that it "would be highly undesirable to replace this arbitrary rule (in Hollington v. F. Hewthorn & Co.) by prescribing equally rigid rules to replace it" (p. 22).

[47]                          I agree, as well, with the Ontario Court of Appeal in Del Core that the prior proceedings may be admissible but the "weight and significance" to be given to them "will depend on the circumstances of each case" (p. 21).

The law of Ontario is only now emerging from the long shadow cast over it by the decision in Hollington v. Hewthorn, supra.  It would be highly undesirable to replace this arbitrary rule by prescribing equally rigid rules to replace it.  The law should remain flexible to permit its application to the varying circumstances of particular cases.  [p. 22]

[48]                          Once admitted, the weight to be given to the earlier decision in subsequent interlocutory proceedings will rest not only on the identity of the participants, the similarity of the issues, the nature of the earlier proceedings and the opportunity given to the prejudiced party to contest it but on all "the varying circumstances of particular cases" (Del Core, at p. 22)


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