The Ontario Court of Appeal recently allowed an appeal of a decision dismissing an action for being an abuse of process. ​

The plaintiff was convicted of murder in 1972. He protested his innocence over the next several decades. He was eventually able to re-open his case and received previously undisclosed and potentially exculpatory alibi evidence. The plaintiff’s conviction was ultimately quashed on a reference to the Court  of Appeal in 2009 (the “Reference”). The Reference concluded that the plaintiff’s criminal trial had not been unfair given the disclosure obligations which existed at the time. However, the plaintiff’s conviction was quashed on the basis of the fresh evidence, and a new trial was ordered. Given the lengthy passage  of time, the Crown did not proceed with the new trial and ultimately withdrew the charge. The plaintiff then commenced a civil action against the Crown and the police seeking damages for negligence, malicious prosecution, breach of Charter rights and various other causes of action. Among other things, the plaintiff alleged that, but for the defendants’ negligence or deliberate wrongdoing in failing to disclose potentially exculpatory evidence, he would not have been convicted of murder, or alternatively, his conviction would have been quashed sooner.

The defendants moved to have the action dismissed as an abuse of process on the basis that the action raised issues which had been determined by the Court of Appeal on the Reference. Alternatively, the defendants sought to have the action permanently stayed on the basis that it would be impossible for the action to be tried given the passage of time.

At first instance, the defendant’s motion was successful. The motion judge held that it would be an abuse of process to allow the issues which had already been decided to be re-litigated. She further found that the action should be stayed in any event due to prejudice arising from the passage of time, witness availability and the fading of memories. The plaintiff appealed the motion judge’s decision.

The Court of Appeal allowed the plaintiff’s appeal, and the action was permitted to continue. The Court noted that, while the nature and purpose of the Reference was to determine whether the plaintiff’s trial had been unfair and whether the conviction should stand, the civil action raised broader considerations, such as whether there was liability for the delay in disclosing the alibi evidence once Crown disclosure obligations changed. The Court also expressed the concern that,  in holding that certain findings of fact had been made in the Reference and could not be revisited, the motion judge failed to consider that the Reference ordered a new trial where all issues would have been open for the jury’s consideration, including the strength of the alibi evidence and whether there had been misconduct on the part of the defendants. The Reference in this case could not have intended to bind a future criminal trial, and the Court held that the same conclusion applied in respect of a civil action.

The Court also held that the action should not be stayed. Although witnesses had died and memories had faded, it would be manifestly unfair to preclude the plaintiff from pursuing the claim when it was not his fault that so much time had passed. Accordingly, the Court expressed the view that granting a stay would bring the administration of justice into disrepute.