Barrister and Solicitor
Legal Writing and Research
Estoppel - Issue Estoppel
Abuse of Process
Phillion v. Ontario (Attorney General) (Ont CA, 2014)
In this case the Court of Appeal considered a civil action emanating from an old murder conviction that, after an extended incarceration was sent to itself on a Reference. That Reference resulted in an Order for a new trial due to non-disclosure of evidence to the defence. After the Crown decided not to proceed with the new trial, the defendant sued in a range of torts, including "conspiracy, fraudulent and negligent misrepresentation, malicious prosecution, negligence and misfeasance in public office." Concerns of issue estoppel and abuse of process arose within the civil action.
On the issue of issue estoppel the court found that the issues before it previously in the Reference were distinct from those of the tort action and as such found no issue estoppel emanating from the Reference:
 I now turn to the second error the motion judge made in concluding that it would be an abuse of process for the appellant to pursue a civil action for wrongdoing against the state authorities. She came to this conclusion based on her view that all of the issues had already been determined by the Court of Appeal on the reference. In particular, the motion judge emphasized that the court found no wrongdoing on the part of the authorities.On the issue of abuse of process, which arose due to the re-litigation of potentially common issues in both the Reference and the tort action, the court stated:
 However, that finding was made only for the purpose of deciding whether the newly discovered evidence could be admitted on appeal based on trial unfairness. The court did not consider whether the respondents breached any common law duty of care or whether they owed any such duty to the appellant.
 Most importantly, the Court of Appeal admitted the evidence on other grounds and then ordered a new trial. The court placed no restrictions on the conduct of that trial or on the issues that could be raised. Clearly, had the trial proceeded, the defence would have raised the alibi and the fact that Detective McCombie had concluded in 1968 that the appellant was not the murderer. The Crown would have led the evidence of how the alibi was discredited. It would have been open to the jury to accept, reject or have a reasonable doubt about the key issue that the Court of Appeal could not decide: whether the Trenton alibi had been discredited. If the jury did not believe that the alibi had been discredited by Detective McCombie, then the finding by the Court of Appeal that there was no duty on the Crown to disclose would itself be implicitly discredited.
 Without seeking to set out a general rule applicable to all references, the nature of the reference in this particular case was such that the findings of the court could not have been intended to bind a future hearing if a new trial was ordered.
 It follows that the same conclusion applies with respect to a civil action. It is also consistent with the fairness analysis recently adopted by the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), 2013 SCC 19,  2 S.C.R. 125.
 In that case, Cromwell and Karakatsanis JJ. discuss two ways in which the operation of the doctrine of issue estoppel can be unfair to a party. The first is when the original proceeding was unfair. The second occurs when it is unfair to use the results of a prior proceeding to bar a subsequent proceeding. They note that fairness in this context is a much more nuanced inquiry. As an example, injustice can arise when “there is a significant difference between the purposes, process or stakes involved in the two proceedings”: Penner, at para. 42. In my view, a similar analysis applies here in the related context of abuse of process: see also the discussion in C.U.P.E., at para. 53.
 The reference was a unique proceeding initiated by the Minister of Justice for the purpose of inquiring into a possible wrongful conviction. Mr. Phillion had the onus of proof to either show trial unfairness or meet the Palmer test in order to have the newly discovered evidence admitted. However, to do that, he did not need to prove anything about the police or Crown motive or intent behind their failure to disclose. His focus was on satisfying the court that his conviction had to be set aside.
 The motion judge acknowledged that at the reference, Mr. Phillion did not impugn the integrity of Mr. Lindsay or Detective McCombie, but she stated that the court would nevertheless have had to find improper conduct on their part in order to agree with Mr. Phillion that they should have disclosed the 1968 McCombie Report. She reasoned that the court implicitly found that the respondents did not act out of malice. Therefore, she held that although the appellant did not raise that issue on the reference, because of the court’s implicit finding, he is now precluded from raising their intent in a subsequent civil action.
 Contrary to the motion judge’s finding, in my view, the specific purpose of the reference and the questions it addressed indicate that the stakes, purpose and process were entirely different from this civil action. It would therefore be unfair to preclude the appellant from bringing a civil action on the basis that he is bound by an implicit finding made on the reference that there was no malice.
 Finally, and in any event, the findings made on the reference with respect to the conduct of the Crown and police did not consider any issues of negligence or a common law duty of care, as alleged in the statement of claim.
Conclusion on Abuse of Process
 In my view, the order dismissing the action as an abuse of process must be set aside. Such orders are only to be granted in the clearest cases and only when allowing the action to proceed would bring the administration of justice into disrepute. The motion judge erred in law in concluding that this was a case of relitigation and that it justified the application of the doctrine of abuse of process.
 The leading case on the doctrine of abuse of process is the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), 2003 SCC 63,  3 S.C.R. 77. Arbour J. explained, at paras. 35-37, that this doctrine represents the inherent and residual discretion to “prevent an abuse of the court’s process” when other doctrines such as issue estoppel may not be available. At para. 35, she adopted the words of McLachlin J. (as she then was) in R. v. Scott, 1990 CanLII 27 (SCC),  3 S.C.R. 979, at p. 1007, as follows:
[A]buse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. As it relates to this case, the doctrine has been applied to prevent relitigation when the requirements of issue estoppel cannot be met (as is the case here, because the parties to the two proceedings are not the same), but when “allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37. The court emphasized that the focus of the doctrine of abuse of process is less on the parties and more on “the integrity of judicial decision making as a branch of the administration of justice”: C.U.P.E., at para. 43.
 In R. v. Mahalingan, 2008 SCC 63 (CanLII), 2008 SCC 63,  3 S.C.R. 316, at para. 42, McLachlin C.J. expressed the view that the doctrine of abuse of process is vague and variable, pointing out that the Supreme Court has said that “successful reliance on the doctrine will be extremely rare”. Importantly for this appeal, she stated further, at para 42, that:
To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process. [Citation omitted.] With respect to the motion judge, in finding that abuse of process should be applied in this case, in my view she fell into error in two respects. First, she failed to analyze the nature and purpose of the reference, including the specific question the court was asked to answer, in comparison with the issues raised in the civil claims. In that context, she erred in concluding that the issue whether the Trenton alibi had been discredited was a roadblock to the civil claim, and in taking an overly broad view of the findings of fact that she believed were made by the Court of Appeal on the reference.
 Second, in holding that on the reference the court made findings of fact that could not be revisited, she did not consider the effect of the remedy that the reference court ordered, which was a new criminal trial. At the new trial, all issues would have been open for decision by a jury, including, most importantly, whether the Trenton alibi had been discredited.
 Dealing with the first error, the statement of claim is broadly drafted. It seeks compensation in tort for the appellant’s conviction because information about an alibi was withheld from the defence. The court on the reference found that if the jury had been told about the Trenton alibi and about Detective McCombie’s evidence of how he discredited it, including the fact that the documentation and the car radio he took from Trenton had been lost by the time of the trial, they may have had a reasonable doubt about the appellant’s guilt.
 Accepting that at the time, the Crown did not have a positive obligation to disclose a discredited alibi, the police and Crown could arguably still be found liable to the appellant in tort. For example, had the detective not given misleading answers at the preliminary hearing about the extent of his investigation – answers that the Crown did not correct – the defence may well have learned about his 1968 report and his assertion that he later changed his view. Defence counsel would then have been able to explore the issue with the jury. As Moldaver J.A. stated, that information would have been “gold” in defence counsel’s hands.