Canadian Underwriter

Abuse of process doctrine applies in civil cases, Ontario Appeal Court finds

November 10, 2008   by Canadian Underwriter

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The abuse of process doctrine — which says it is an abuse of the court process to re-litigate negligence that has already been established during a previous criminal trial — does in fact have application in a civil trial, the Ontario Court of Appeal has ruled.
The Appeal Court thus dismissed an appeal by Economical Mutual Insurance Company in Caci v. Dorkin.
The Economical argued that a previous criminal conviction for a driver it was defending did not necessarily preclude another, non-convicted driver from sharing some portion of responsibility for a vehicle collision involving serious injury.
The case was based on a situation in which David MacArthur was driving south on a major highway in the City of Brampton in July 2001.
MacArthur was following two other vehicles, each traveling at a high rate of speed, when his car collided with a car driven by Ana Dorkin, who was making a left turn in an intersection at the time.
MacArthur’s passenger, Jerry Caci, was seriously injured in the crash.
MacArthur was convicted of criminal negligence in a criminal trial. The Caci family then launched a civil trial against MacArthur.
The lower court ruled that MacArthur was 100% responsible for the collision and Dorkin was 0% responsible. The trial judge told the jurors in the civil trial that MaCArthur’s conviction in the criminal trial was conclusive of his negligence; to re-litigate this issue would have constituted an “abuse of process,” the trial judge ruled.
The Economical appealed the trial judge’s decision, arguing that MacArthur’s conviction was not conclusive of whether Dorkin may have been at least partly responsible for the collision.
The Appeal Court agreed with the insurer that Dorkin’s responsibility was not at issue in MacArthur’s conviction, but nevertheless held that the trial judge’s ruling “did not prevent [The Economical] or McArthur from calling evidence that was relevant to the issues of Dorkin’s negligence, and in fact considerable evidence was led on that issue [at trial].”
It was McArthur’s “excessive speed” of driving that ultimately decided the question of Dorkin’s negligence at trial, the Appeal Court concluded. To re-litigate Dorkin’s responsibility in a civil trial would therefore amount to an abuse of process.

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