In the recent case of Lambert et al v. Lambert, 2022 ONSC 6432, Regional Senior Justice Edwards granted partial summary judgement against the defendant on the issue of liability, finding liability was grounded in a guilty plea made to charges of indecent assault against the plaintiffs.
Recognizing the clear direction of the Court of Appeal that partial summary judgement should be reserved only for the “clearest of cases,” in the context of a civil claim for sexual assault, where the defendant has pleaded guilty, it would be “a rare case where partial summary judgement would not be granted”.[1]
Background
In 2004, the defendant pleaded guilty to three counts of indecent assault against the plaintiffs and was sentenced to 18 months (served in the community). The sexual abuse had taken place between approximately 1967 and 1975 and included numerous incidents.
In the civil claim, the defendant denied liability for the plaintiffs’ damages.[2] His statement of defence noted he was 84 years old, lived in a long-term care home and suffered from dementia.[3] The plaintiffs argued that the defendant’s guilty plea and the criminal convictions constituted an “irrefutable basis” upon which the court could make a finding of civil liability, due to the application of section 22.1 of the Evidence Act, RSO 1990, c. E23, and that it would be an abuse of process to allow the defendant to maintain a denial of liability.[4]
Analysis
In the context of a civil action, proof of a person’s prior criminal conviction constitutes proof of the “essential facts” of the offence.[5] Subject to section 22.1 of the Evidence Act, the criminal conviction provides proof that the convicted person had engaged in certain acts, with a certain state of mind and therefore dispenses with the need to prove the essential facts established by the finding of liability in the criminal proceeding.[6] Further, the doctrine of abuse of process bars a convicted person from re-litigating the essential facts of the offence and they cannot adduce any evidence contrary to the essential facts of the conviction.”[7]
On motion for summary judgement, the Supreme Court set out in Hryniak v. Mauldin that there is no genuine issue for trial where the judge is able to reach a fair and just determination on the merits, considering proportionality and fair access to affordable, timely and just adjudication of claims.[8] Partial summary judgement motions complicate the underlying objectives of Hryniak, however, because they may cause the resolution of the main action to be delayed, judges must spend time adjudicating an issue that does not dispose of the claim and the limited record increases the danger of inconsistent findings.[9] Therefore, the Court of Appeal in Butera v. Chown Cairns LLP[10] concluded that partial summary judgment should be a “rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner”.[11]
In this case, the defendant’s guilty plea was an admission.[12] There was nothing in the evidence to suggest that the defendant did not make the plea voluntarily to indecent assault.[13] Section 22.1 of the Evidence Act is “designed and intended” for circumstances such as this. The court stated “it would be an abuse of process to allow the defendant to take a contrary position in this civil action to the one he presented to the court when he pleaded guilty”.[14]
The issue of the plaintiffs’ damages is separate and apart from the issue of liability. It was open to the defendant to plead the plaintiffs’ damages may not have been caused by the sexual abuse. However, the defendant’s denial of the basis for his civil liability was found to be an abuse of process.[15] The court noted that given section 22.1 of the Evidence Act, the trial on liability would be “undoubtedly short,” however, “plaintiffs who are victims of sexual assault should know at the earliest opportunity that the issue of liability is a nonissue.”[16] Further, it is “equally important that the defendant understand now, and not later, that liability is no longer an issue.”[17]
This case is an example of the “clearest of cases” and the “rare case” in which the granting of partial summary judgement properly bifurcates the issue of liability from the issues of damages and causation.[18]
In civil sexual assault claims, a prior criminal conviction or guilty plea can provide plaintiffs with a measure of certainty that liability will be established.
[1] Lambert et al v Lambert, 2022 ONSC 6432 at 2
[2] Ibid at 18
[3]Ibid at 21
[4]Ibid at 6
[5]Ibid at 9
[6]Ibid
[7]Ibid at 10
[8] Ibid at 12 and Hryniak v Mauldin, 2014 SCC 7 at para 49, 50
[9] Ibid at 13
[10] Butera v Chown Cairns LLP, 2017 ONCA 783
[11] Ibid at 29-33
[12] Lambert, supra note 1 at 17
[13] Ibid
[14] Ibid
[15] Ibid at 19
[16] Ibid
[17] Ibid at 21
[18]Ibid at 20
