The decision of Mr. Justice David M. Brown in Caci v. MacArthur raises some interesting questions relating to apportionment of fault. It also applied to this MVA action a line of decisions in sexual abuse cases, where defendants had not been permitted to “relitigate” their criminal convictions.
This was a civil trial arising out of a 2001 motor vehicle accident. The plaintiff was a passenger in one of two cars that collided. He sued his own driver (MacArthur) and the other driver (Dorkin). The only remaining issue at trial was the respective liability of the two drivers, who had crossclaimed against each other.
(The defendant MacArthur was uninsured and accordingly, the plaintiff’s insurer, Economical Mutual, was also sued, under its uninsured motorist coverage. At trial (before Justice Brown and a jury), MacArthur was unrepresented but his case was, in effect, being presented by counsel for Economical.)
Today’s decision is a sequel to a ruling made by Justice Brown two days earlier (January 16, 2007), one which has unfortunately not been posted online.
Brown J.’s January 16, 2007 ruling
MacArthur had been convicted of dangerous driving, contrary to s. 249(3) of the Criminal Code. In the January 16 ruling, counsel for the defendant Dorkin had asked Justice Brown for leave to place before the jury the reasons of the judge who had convicted MacArthur of dangerous driving. He also asked that the defendant Economical Mutual not be permitted to adduce evidence about the collision that would have the effect of re-litigating the criminal case.
Justice Brown reviewed caselaw in which it was held that it would be an abuse of process to permit persons who had been convicted of sexual assault, in later civil proceedings, to adduce evidence inconsistent with the conviction: Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 and Hanna v. Abbott (2006), 150 A.C.W.S. (3d) 606 (Ont. C.A.). He also considered a 1985 Divisional Court case, Taylor v. Baribeau, (1985), 51 O.R. (2d) 541 which had held that evidence of a criminal conviction was admissible as prima facie evidence of the elements of the evidence but that that evidence was subject to rebuttal at the civil trial.
His Honour concluded that Taylor v. Baribeau is no longer good law and that the Supreme Court of Canada’s decision in CUPE now “governs the analysis”, even in this different set of circumstances:
The effect of the decision in CUPE is that if a convicted person cannot demonstrate that the admission of evidence rebutting the conviction is necessary to enhance the credibility and effectiveness of the adjudicative process as a whole, then proof of the criminal conviction, for all practical purposes, will be conclusive of the issue, a result recognized by the Court of Appeal in K.F. Jordan F. v. White (2001), 53 O.R. (3d) 391 (C.A.).
Having concluded that it was not open to either MacArthur or Economical Mutual, to relitigate “the facts essential to the conviction”, Justice Brown then set about identifying what those facts were. He reviewed the reasons for judgment of the judge who had tried the criminal case and distilled from those reasons four “facts essential to the conviction”. These related to such things as MacArthur having been speeding and following too closely.
Justice Brown refused the request of counsel for Dorkin, that he provide to the jury a copy of the reasons for judgment in the criminal trial.
The January 16 ruling concluded with Justice Brown’s finding that his decision not to allow re-litigation of the facts essential to MacArthur’s conviction still left outstanding the issue of whether the other driver, Dorkin, had also been negligent.
Brown J.’s January 18, 2007 ruling
As a result of the January 16 decision, counsel provided Justice Brown with draft questions for the jury. The first question asked whether there had been any negligence on the part of MacArthur which caused or contributed to the collision. If the answer were “Yes”, the second question would have asked the jury to provide full particulars of MacArthur’s negligence. (Questions 3 and 4 were similar, but related to the other driver, Dorkin. A fifth question asked the jury to apportion liability between the two drivers.)
Justice Brown held that, in light of his January 16 decision, “there is nothing left for [the jury] to do in respect of the finding of negligence against [MacArthur]. They cannot be asked to provide particulars of his negligence because they are not being asked to consider whether he was negligent; they are being directed to find him negligent.” As a result, His Honour refused to put to the jury the questions, asking whether MacArthur had been negligent and if so, in what particulars.
That left the questions relating to the negligence of the other driver, Dorkin. The questions as to whether she had been negligent and, if so, for particulars of that negligence, were permitted. Justice Brown said:
I intend to repeat to the jury in my charge the four facts essential to the conviction of Mr. MacArthur that I set out in my January 16, 2007 ruling and tell them that they must accept those facts about the way that Mr. MacArthur drove his car as the factual basis upon which Mr. MacArthur was convicted for dangerous driving – i.e., as the factual basis upon which it was found that he drove in a manner that was a marked departure from the standard of care that a reasonable person would observe in that situation.
Comment
Justice Brown’s finding, that MacArthur’s negligence caused or contributed to the accident, did not specify MacArthur’s percentage of fault. In effect, all that had been decided by Justice Brown was that MacArthur was at least one percent negligent. The exact proportion of his fault was to be assessed by the jury. The decision raises some questions for us:
Might Dorkin also have been disadvantaged by this ruling? It appears that the jury would hear evidence about the negligence of Dorkin but would have only Justice Brown’s summary of the findings made at the criminal trial to aid it in apportioning fault to MacArthur. Might that exaggerate the impact of the evidence of Dorkin’s negligence, such that the jury would attach too much signfiicance to evidence of Dorkin’s negligence?
Would it have been open to counsel for Dorkin, to call evidence of other misconduct on the part of MacArthur (i.e., apart from the facts essential to the dangerous driving conviction), in order to try to persuade the jury that MacArthur should bear a larger share of liability?
To what extent would Justice Brown’s decision tie the hands of Economical’s counsel in trying to make a case for negligence against Dorkin? For example, could he suggest that Dorkin had stopped too quickly (thus perhaps undercutting the finding, made in the criminal trial, that MacArthur had been following too closely)?
Would it be open to the jury to apportion liability to MacArthur on the basis of any facts other than the four “essential facts” identified by Justice Brown? If so, where would that evidence come from?
If MacArthur had been convicted of a lesser offence, say, careless driving under the Highway Traffic Act, would the “abuse of process” argument have been available to Dorkin? The authors of Holmsted & Watson, Ontario Civil Procedure, note that the Supreme Court in the CUPE case did not draw a distinction between “convictions for serious criminal offences, and convictions for less serious matters, such as careless driving and other traffic offences”. They point out that, in the United States, it is only serious criminal convictions to which the “abuse of process” principle bars relitigation. It remains to be seen where the line will be drawn in Ontario.