I really hate giving mea culpas. Just ask the partners of
this law firm; or my wife! It therefore struck me like a Monday
morning insurer's audit when I realized that the Supreme Court
of Canada had recently meddled in, and reversed, a decision that I
commented favourably upon in this Newsletter just over a year
In our Winter 2011 edition, I wholeheartedly embraced the
Ontario Court of Appeal's decision in R. v. Nedelcu
(2011), 7 M.V.R. (6th) 10 and suggested that this
well-reasoned judgment provided the green light for civil litigants
to stop delaying their lawsuits because of a fear that the
tortfeasor/accused might somehow have their examination for
discovery evidence turned against them at a subsequent criminal
At the time, I remarked that the Court of Appeal's decision
made sense from a review of s. 13 of the Charter of Rights and
Freedoms (i.e., the right against self-incrimination)
and of the "deemed undertaking rule" in the Rules of
Civil Procedure. It more importantly also encouraged our
slow-as-molasses civil litigation process to pick up the pace as
parties would no longer be at the mercy of waiting for an outcome
from the similarly snail-paced criminal justice system. All of that
advice is now, quite unfortunately, out the window.
A brief reminder of the facts: Nedelcu consumed alcohol before
taking a passenger on his motorcycle and severely injuring him in
an ensuing accident. Nedelcu was sued civilly and charged
criminally. At his examination for discovery, he deposed that he
did not have any memory of the events leading up to the accident
whereas at the later trial, he testified the opposite. Through some
dubious route, the transcript from that earlier discovery became
available at the criminal trial and was used, in part, to convict
Nedelcu. The Court of Appeal reversed the conviction on account of
the law described above.
The Supreme Court provided the final word on this case in its
late 2012 judgment that was split 6-3. Moldaver J., for the
majority, in my respectful submission, tiptoed around the wording
of s. 13 of the Charter in order to justify restoring the
original conviction at trial.
Specifically, the majority of justices created a distinction
between "incriminating" and "non-incriminating"
evidence when considering the scope of the Charter's
protections against being compelled to provide evidence against
one's self. As the discovery transcript in this case was only
used to impeach Nedelcu's credibility at trial, and was not
used to bolster the Crown's substantive case against him, these
justices found that no constitutional rights had been violated.
The majority went on to propose that trial judges will have
little difficulty distinguishing between "incriminating"
and "non-incriminating" evidence when determining what
compelled civil evidence should be permitted in criminal
proceedings. That is an amusing comment considering how much ink
was spilt over the past half-century over the interpretation of
"but for" in tort cases.
The minority, per LeBel J., quite correctly pointed out that the
distinction raised is a superficial one that will only confuse and
delay trials. The minority also pointed out that the proper course
for dealing with those who lie under oath is not to compromise the
well-founded principles of our constitution, but rather to initiate
separate criminal perjury charges.
The take home message? First, I still hate giving mea
culpas. Second, insurance counsel and adjusters alike should
once again be cautious about providing their insureds for discovery
while criminal charges are ongoing. To do otherwise would risk
short-selling the insured who, it must be recalled, is owed a duty
of loyalty by the insurer and its chosen counsel.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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