Canada: Criminal Convictions Continue To Prove Advantageous For Subsequent Civil Lawsuits: Latest On Summary Judgment In Sexual Assault Cases

A criminal conviction, while not necessary for success in a civil lawsuit for damages, can nonetheless be advantageous. Here, I update an earlier blog to describe another example of the successful use of a criminal conviction to secure summary judgment. With the backlog in our courts and the delays getting cases to trial, it is worth considering more than ever whether summary judgment is an option that makes legal and practical sense. At the end of this article, I offer "takeaways" to assist in making that decision.

Introduction

In sexual abuse and violence cases that are pursued in our civil courts, it is common for there to have been a prior criminal proceeding involving the same parties and factual issues. Many survivors are unaware that the civil justice system provides an alternative, or an additional, means of recourse and accountability. As a result, they often go directly to the police, thinking the criminal justice system is the only option available to them, and never resort to the civil justice system. Other survivors make a deliberate choice to report first to the police and go through a criminal proceeding before pursuing compensation through a civil action. This article addresses the second situation.

In a previous blogpost, a posted article, and a video, I explained key differences between criminal and civil proceedings based on sexual assault allegations and how the two systems of justice – criminal and civil – interact. Here, my focus is on how a criminal conviction can be used in a summary judgment motion to narrow or resolve the issues that need to be proven in a subsequent civil lawsuit. Two very recent Ontario Superior of Justice decisions, as well as an older Ontario Court of Appeal decision, provide helpful guidance on this topic.

Case Law Review

After Franco v. White, 2001 CanLII 24020 , where the Ontario Court of Appeal in 2001 upheld a summary judgment ruling based on a conviction, there seemed to be few motions brought in civil abuse cases for summary judgment on the basis of prior convictions. However, recently I have noted what appears to be renewed interest in pursuing this option.

In Lambert et al. v. Lambert, 2022 ONSC 6432, the defendant pleaded guilty to three counts of indecent assault against three family members. Afterward, two of these family members (daughters of the defendant) sued their father for compensation. Despite his guilty plea in the criminal proceeding, the father denied any wrongdoing in his civil Statement of Defence.

The plaintiff daughters went to court to ask for partial summary judgment. They wanted their father's legal responsibility for abusing them determined summarily on the basis of his prior conviction, so only the issues of damages and what caused their damages would be left to be determined at trial. The Court of Appeal for Ontario in Butera v. Chown, Cairns LLP, 2017 ONCA 783 has said partial (as opposed to full) summary judgment will only be granted in rare cases. In Lambert v. Lambert, the judge granted the plaintiffs' motion, while acknowledging that partial summary judgment is reserved only for the "clearest" of cases. The judge found the case before him was one of those clear cases.

In explaining his decision to grant partial summary judgment, the judge said, "Plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a non-issue... It is equally important that the defendant understand now, and not later, that liability is no longer an issue." The judge said it would be "a rare case where partial summary judgment would not be granted" in circumstances like the ones before him.

Once partial summary judgment has dispensed with the need to prove liability, plaintiffs still have to prove damages. Likewise, if there are other defendants besides the criminally convicted defendant, the liability of those other defendants will remain to be determined. However, even with these issues going to trial for resolution, one is likely looking at a more streamlined trial process that does not require plaintiffs to revisit the painful details of the sexual abuse they endured.

In W.C. v. R.S., 2023 ONSC 4287, the more recent decision on point, the plaintiff also relied on a prior criminal conviction by guilty plea to secure summary judgment on liability. The defendant was the plaintiff's father's cousin and sixteen years older than the plaintiff. When the plaintiff was only 14, the defendant coerced her into engaging in a sexually exploitative relationship with him. He pleaded guilty to a charge of "seduction" of a female between the ages of 16 and 18 years of age, an offence that was on the books at the time of the abuse. Before the criminal court, the Crown read into the record the relevant facts about the defendant's sexual misconduct. These included that his abuse had started when the plaintiff was 14 and had continued for many years afterward. The defendant personally agreed on the record that this was "what happened".

While the plaintiff argued the prior conviction and admitted facts were sufficient to dispose of the issue of civil liability, the defendant countered that the sexual activity was consensual, a defence he said was only available to him in the civil action because lack of consent was not an element of the offence of seduction. On this basis, the defendant argued his liability was an issue for trial.

Both parties filed affidavits on the plaintiff's motion for summary judgment, and there was cross-examination on the affidavits. Citing Lambert v. Lambert, referred to above, the motions judge found the defendant was "bound by the admissions he made to the essential facts of the offence", and while the offence to which the defendant pleaded guilty only covered the sexual abuse that occurred when the plaintiff was over age 16, the admitted facts went beyond that. The judge was satisfied that the elements of the tort of battery were made out, and there was no consent capable of giving rise to a defence to the tort. Nothing said in the affidavits nor on cross-examination raised a genuine issue for trial relevant to consent.

Of note, the judge in W.C. v. R.S. then went on to assess the plaintiff's damages, finding that the record (which included evidence by a psychologist who had assessed the plaintiff) was sufficient to make the necessary determinations, and a trial on damages would not be the fairest, most proportionate, and most expeditious way to do justice between the parties. Thus, full summary judgment disposing of the entire action was granted. Non-pecuniary damages of $275,000 ($225,000 for general damages and $50,000 for aggravated damages) were awarded, as were damages for future therapy. The judge declined to award damages for loss of competitive advantage or punitive damages.

One last point: It is the conviction, and not whether it arose from a guility plea or guilty verdict, that is important. Both Lambert v. Lambert and W.C. v. R.S. involved a conviction arising from a guilty plea, which is an admission of wrongdoing by the accused person. Franco v. White 2001 CanLII 24020 was a sexual assault case in which the accused at his criminal trial entered a plea of "not guilty", and then faced a trial on the merits that resulted in a guilty verdict. The Court of Appeal for Ontario upheld the lower court's decision to grant summary judgment on liability based on this conviction.

Takeaways

I offer some takeaways from the case law and my years of experience litigating sexual abuse claims to help the reader decide whether to bring (or resist) a motion for summary judgment based on a prior conviction (that is not under appeal nor been successfully appealed) involving overlapping parties and issues:

1. Section 22.1 of the Ontario Evidence Act provides that proof of a person's conviction is proof in another subsequent proceeding that the criminal offence was, in fact, committed by that person unless there is evidence to the contrary. In short, the Evidence Act creates a statutory presumption of wrongdoing in the face of a conviction. This has also been described as giving rise to prima facie proof (to be distinguished from conclusive proof) of the fact of guilt in a later civil proceeding. Other jurisdictions in Canada have similar provisions in their respective Evidence Acts.

2. Proof of a person's prior conviction is proof not only of the guilty finding, but also of the "essential facts" underlying the criminal offence for which the person was found guilty – i.e., that the person committed certain unlawful acts with the state of mind (or intent) necessary to result in criminal guilt for the particular offence.

3. As a result, convicted defendants cannot re-litigate the essential facts underlying the criminal offence. This means they cannot lead evidence to contradict the key facts behind their convictions.

4. However, the statutory presumption of wrongdoing created by the Ontario Evidence Act (and other Evidence Acts across Canada) can, in certain circumstances, be rebutted (or countered). As the Ontario Court of Appeal in Franco v. White said, "Summary judgment does not follow automatically upon a criminal conviction if the defendant can show that despite the conviction, there is an issue to be tried." The courts have accepted that defendants may rebut the presumption of wrongdoing to which a conviction gives rise. To do so, they will need to adduce compelling evidence that, in the context of a summary judgment motion, gives rise to a triable issue or, if at trial, is sufficient to discharge the defendant's rebuttal onus of proof. Examples of where the effect of a conviction may be successfully rebutted are where the conviction was vague, and there was not sufficient similarity between the facts giving rise to the civil claim and those underlying the conviction, or where a defendant lacked adequate incentive to fully defend a minor criminal charge, and it would be unfair to hold the defendant to that result when facing more serious consequences from a civil action. The case law suggests it will be rare for a court to look behind a criminal conviction and find it cannot be relied upon in a subsequent civil proceeding. Certainly, a previously convicted defendant cannot simply repeat their plea of not guilty and assert a blanket denial of the allegations, and expect this to be sufficient to rebut the presumption of guilt. More than this is required.

5. The documents from the criminal proceeding that civil lawyers on both sides need to collect and rely upon to prove (or rebut) the presumption of wrongdoing in the civil proceeding include:

6. For plaintiffs and their lawyers, there is good legal authority for shortening the civil litigation process by, in effect, taking a big (and often difficult) piece of what has to be proven – namely, the factual allegations of the assault(s) that underpin civil liability – out of the equation. This potentially means a more streamlined litigation process, including a narrower scope for documentary and oral discovery of the plaintiff and a shorter and less distressing process for the plaintiff, who will not be called upon to repeat and re-live the details of what happened through oral examination for discovery, a defence medical examination, and/or at trial through their testimony.

7. However, there are many practical considerations that plaintiffs and their lawyers will need to bear in mind when deciding whether to move for summary judgment on liability. These include:

8. For convicted defendants and their lawyers, the following should be considered from the outset:

Conclusion

Unlike a prior acquittal which is not relevant nor admissible in a civil case (see, for example, Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427), a prior conviction has many implications for a later civil lawsuit involving the same parties and essential facts. The potential for summary judgment on liability is just one of these implications. Our courts have made it clear that a criminal conviction can be advantageous for plaintiffs in a later civil action, as it may dispense with the need to prove liability against convicted defendants. The decision to proceed with a motion for partial summary judgment and what position to take in response to such a motion are matters deserving careful and strategic consideration by the parties to a civil lawsuit and their lawyers.

While a prior conviction is by no means a prerequisite to pursuing a civil remedy for sexual abuse and violence, where a conviction does exist, whether based on a guilty plea or a verdict, it will usually allow plaintiff survivors to move through the civil process towards resolution and some closure, more efficiently and confidently. For defendants – both those who have been previously convicted and others who may share legal responsibility for the wrongdoing – a prior criminal conviction can offer opportunities for a more streamlined and cost-effective resolution of a civil matter.