The plaintiff was convicted of murder in 1972. He protested his
innocence over the next several decades. He was eventually able to
re-open his case and received previously undisclosed and
potentially exculpatory alibi evidence. The plaintiff's
conviction was ultimately quashed on a reference to the Court
of Appeal in 2009 (the "Reference"). The Reference
concluded that the plaintiff's criminal trial had not been
unfair given the disclosure obligations which existed at the time.
However, the plaintiff's conviction was quashed on the basis of
the fresh evidence, and a new trial was ordered. Given the lengthy
passage of time, the Crown did not proceed with the new trial
and ultimately withdrew the charge. The plaintiff then commenced a
civil action against the Crown and the police seeking damages for
negligence, malicious prosecution, breach of Charter
rights and various other causes of action. Among other things, the
plaintiff alleged that, but for the defendants' negligence or
deliberate wrongdoing in failing to disclose potentially
exculpatory evidence, he would not have been convicted of murder,
or alternatively, his conviction would have been quashed
The defendants moved to have the action dismissed as an abuse of
process on the basis that the action raised issues which had been
determined by the Court of Appeal on the Reference. Alternatively,
the defendants sought to have the action permanently stayed on the
basis that it would be impossible for the action to be tried given
the passage of time.
At first instance, the defendant's motion was successful.
The motion judge held that it would be an abuse of process to allow
the issues which had already been decided to be re-litigated. She
further found that the action should be stayed in any event due to
prejudice arising from the passage of time, witness availability
and the fading of memories. The plaintiff appealed the motion
The Court of Appeal allowed the plaintiff's appeal, and the
action was permitted to continue. The Court noted that, while the
nature and purpose of the Reference was to determine whether the
plaintiff's trial had been unfair and whether the conviction
should stand, the civil action raised broader considerations, such
as whether there was liability for the delay in disclosing the
alibi evidence once Crown disclosure obligations changed. The Court
also expressed the concern that, in holding that certain
findings of fact had been made in the Reference and could not be
revisited, the motion judge failed to consider that the Reference
ordered a new trial where all issues would have been open for the
jury's consideration, including the strength of the alibi
evidence and whether there had been misconduct on the part of the
defendants. The Reference in this case could not have intended to
bind a future criminal trial, and the Court held that the same
conclusion applied in respect of a civil action.
The Court also held that the action should not be stayed.
Although witnesses had died and memories had faded, it would be
manifestly unfair to preclude the plaintiff from pursuing the claim
when it was not his fault that so much time had passed.
Accordingly, the Court expressed the view that granting a stay
would bring the administration of justice into disrepute.
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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