This case addresses whether the abuse of process doctrine prevents the appellant from leading evidence in subsequent arbitration, subject to a previous finding of fact by another court; enlivening the principle of ‘evidence to the contrary’.
Date Heard: December 8, 2016 | Full Decision [PDF]
Contextual History
On April 25, 2010, a vehicle driven by Patrick Cadieux collided with a truck. Mr. Cadieux’s four-year-old son, a passenger in his vehicle, suffered significant injuries in the crash. The son claimed Statutory Accident Benefits under the Insurance Act, R.S.O. 1990, c. I.8. The Cadieux vehicle had been insured by Intact. Intact claimed, however, that it had cancelled the policy five days before the accident for non-payment of premiums. Federated insured the truck involved in the accident.
This appeal arises as a result of a priority dispute between two insurers where the court must decide whether the Appellant [Federated] may lead evidence at Arbitration that, despite HTA convictions for driving without insurance, the vehicle in which the injured person was a passenger was in fact covered by the Intact [Respondent] policy.
On first instance, the Arbitrator held that the abuse of process doctrine should not prevent Federated from leading evidence with respect to the policy validity at the time of the collision. On appeal, the application Judge reversed the arbitrators’ decision, holding that the issue could not be re-litigated. Federated appeals that holding.
Issue
Whether Federated could lead the following evidence: ‘…that because Intact had not followed th required procedures when purporting to cancel the policy, Mr. Cadieux was insured at the time of the accident by Intact’.
Brief Answer
Doherty J.A., for the Court of Appeal at [51] concluded that:
In my view, fairness to Federated strongly dictates that it should have an opportunity to demonstrate that Mr. Cadieux was insured at the time of the accident. Intact suffers no unfairness in allowing Federated that opportunity. In addition, re-litigation of Mr. Cadieux’s insurance status in the context of the private arbitration between the insurers has no negative impact on the integrity of the overall adjudicative process and may in fact enhance that integrity by generating a more reliable result. These factors combine to satisfy the onus on Federated to show that re-litigation would not constitute an abuse of process.
Analysis
The Court of Appeal began its analysis at the evidentiary doctrine expressed within s. 22.1 of the Evidence Act which reads proof that a person has been convicted of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person. Referring to Caci v. MacArthur, 2008 ONCA 750, the interpretation of s. 22.1, means that proof of the prior conviction constitutes proof of all of the facts essential to that conviction, absent evidence to the contrary. Evidence to the contrary however refers to evidence that contradicts the facts essential to the prior conviction.
The abuse of process doctrine is a common law doctrine developed by the courts to protect the integrity of the adjudicative process developed in this instance to protect re-litigation of decided facts.
The operation of the evidentiary and common law doctrines overlap upon the rebuttable presumption: evidence to the contrary. A party may lead “evidence to the contrary” to avoid the evidentiary rule established in s. 22.1. The abuse of process doctrine operates to foreclose a party from leading that “evidence to the contrary” when to do so would constitute an abuse of the court’s process, referring to Bank of Montreal v. Woldegabriel, [2007] O.J. No. 1305 (Ont. S.C.J.).
t [23] Intact, relying on s. 22.1, argued that proof that Mr. Cadieux had been convicted of driving without insurance at the time of the accident proved, for the purposes of the arbitration, that he was driving without insurance at that time, negating Intact’s responsibility to pay Statutory Accident Benefits under the priority scheme in the Insurance Act. Federated responded to Intact’s position with “evidence to the contrary” consisting of evidence that Intact had not properly cancelled the policy, meaning that Mr. Cadieux was insured and that Intact was responsible for the Statutory Accident Benefits. Intact, in turn, argued that the abuse of process doctrine should be applied to prevent Federated from leading its evidence to the contrary.
As Intact was not a party to the HTA proceedings the Court of Appeal referred to Canam Enterprises Inc., v. Coles, (2000), 51 O.R. (3d) 481 in that the evidentiary doctrine must consider whether fairness requires re-litigation. The role played in the earlier proceeding by the party seeking to re-litigate a fact is an important consideration in deciding whether re-litigation constitutes an abuse of process. Fairness is more likely to favour re-litigation if the party seeking to re-litigate did not have an opportunity to litigate the issue at the prior proceeding.
The Court of Appeal then considered the following factors found in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, as follows:
- The abuse of process doctrine is a manifestation of a court’s inherent power to prevent misuse of its process by re-litigation of previously decided facts: CUPE, at para. 37;
- The doctrine is primarily focused on preserving the integrity of the administration of justice rather than protecting the interests of individual litigants: CUPE, at para. 43;
- Re-litigation inevitably has a detrimental effect on the due administration of justice. It can lead to inconsistent and even irreconcilable results, devalue finality, and cause the expenditure of resources, both public and private, on further proceedings with no guarantee that the second result will be more accurate than the first: CUPE, at paras. 38, 51-52;
- Re-litigation should thus be avoided unless “the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole”: CUPE, at para. 52;
- There is no closed list of the circumstances in which re-litigation is necessary. Courts will permit re-litigation if in the specific circumstances “fairness dictates that the original result should not be binding in the new context”: CUPE, at paras. 52-53.
However, in consulting its own decision in Guergis v. Novak, 2013 ONCA 449 the procedures followed in the first proceeding may have an impact on the fairness of that proceeding or the reliability of the result. The parties arguing this issue may use those features, of the prior proceeding, to support their position on re-litigation.
At [37] the court of appeal went on to analyze the issue as follows:
However, if a party seeks to rely on the conduct of the specific prior proceeding, either to support or counter an abuse of process argument, it is incumbent on that party to lead evidence to support its position. For example, if one party claims that the conviction entered in the prior proceeding should not foreclose re-litigation because the accused did not understand the charge, or did not defend the charge, it falls on that party to lead evidence to support its claim. Equally, if a party seeking to invoke the abuse of process doctrine at the subsequent proceeding asserts that exactly the same factual issues were fully litigated at the prior proceeding, it falls on that party to lead evidence to support that position.
Moreover, in Becamon v. Wawanesa Mutual Insurance Co., 2009 ONCA 113, the Court of Appeal considered how the focus of potential consequences of the first and subsequent proceedings can affect the evidence to the contrary and the integrity of the adjudicative process. If the stakes of the first proceeding are “too minor to generate a full and robust response”, fairness supports re-litigation of facts decided in the first proceeding, especially when the stakes in the second proceeding are considerably more significant. Moreover, while there is certainly a public interest in protecting the passenger’s right to Statutory Accident Benefits under the Insurance Act, there is little, if any, public interest in the determination of which of the two insurers involved in the proceeding should pay those benefits. An important factor is whether the subsequent arbitration between Intact and Federated is likely “to enhance the credibility and the effectiveness of the adjudicative process as a whole”. It is in line with the overall balancing of systemic concerns that inevitably arise if re-litigation is permitted against fairness to the litigants.
Notice of Appeal:
At the time of writing this article, notice of appeal was noted as filed July 17, 2017.
Read the full decision [PDF]
