Defence & Indemnity - February 2017: IV. PRACTICE ISSUES A.

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The doctrine of abuse of process does not preclude re-litigation of the issue of whether or not an individual was insured in a priority dispute between insurers in the face of that individual’s having been convicted of driving without insurance.

Intact Insurance Company v. Federated Insurance Company, 2017 ONCA 73, per Doherty, J.A. [4212]

I. FACTS AND ISSUES
 
Intact Insurance and Federated Insurance were involved in a civil dispute as to whether or not Intact Insurance had a valid policy in place with respect to an auto insured (Cadieux) at the time of a motor vehicle accident on April 25, 2010. The issue was as to whether or not Federated was precluded from leading evidence that Intact’s policy was in place in light of the fact that the insured driver had been convicted of driving without insurance in earlier traffic proceedings relating to the same accident.
 
On April 25, 2010 Cadieux was involved in an accident in which his four year-old son (his passenger) suffered significant injury. The son claimed for Statutory Accident Benefits under the Insurance Act, R.S.O. 1990, c. I.8. The Cadieux vehicle had been insured under an auto policy issued by Intact. Intact took the position that it had cancelled the policy five days before the accident for non-payment of premiums. Federated Insurance insured the other vehicle involved in the accident.  It was undisputed that if Intact was the insurer of the Cadieux vehicle at the time, it would be responsible to pay the son’s Statutory Accident Benefits pursuant to s. 268(2)(1.ii) of the Insurance Act. However, if that policy had been validly cancelled Federated would be responsible for paying those benefits. Intact and Federated went to arbitration on this dispute pursuant to the Regulations under the Insurance Act.
 
The parties asked the arbitrator to determine a preliminary issue. It was agreed that the driver (Cadieux) had been convicted of driving without insurance under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. The arbitrator was asked to rule on the question of whether or not the abuse of process doctrine prevented Federated from leading evidence that Cadieux was insured under the Intact policy at the time of the accident. Federated’s position was that Intact had not followed the required procedures to properly cancel the policy and filed evidence of transcripts of examinations of two Intact employees which the Court held “raised legitimate questions about Intact’s notification to Mr. Cadieux of the policy cancellation."
 
The arbitrator held that Federated was not precluded from leading evidence to the effect that the Intact policy had not been properly cancelled and, accordingly, was still in force at the time of the collision. It was held that Federated had “played no role whatsoever” in the traffic proceeding and “was not in a position to influence the outcome of” that proceeding such that “it would be unfair to deny a party of opposite interest and opportunity to lead evidence contrary to the initial conviction in the context of a priority dispute pursuant to the Insurance Act.”
 
Intact appealed to the Court and the application judge reversed the arbitrator’s decision. Section 22.1 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 provided proof that a person has been convicted of a crime is proof, in the absence of “evidence to the contrary” that the crime was committed by that person.  The application judge held that Federated had failed to lead any “evidence to the contrary” before the arbitrator. Accordingly, he held that the arbitrator had erred in law by refusing to apply the doctrine of abuse of process. The application judge briefly referred to that common law doctrine, referring to the leading case in the area, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. The application judge held that the arbitrator had erred in considering Federated’s non-involvement in the traffic proceeding amounted to a significant consideration. Federated appealed. 
 
II. HELD: For the Appellant Federated Insurance; re-litigation of insurance issue allowed 

1. The application judge was held to have erred by confusing the operation of s. 22.1 of the Evidence Act with the abuse of process doctrine.
a. It was held that s. 22.1 was a rule of evidence intended to expedite proof of a conviction in subsequent proceedings:
[17]      S. 22.1 is a rule of evidence intended to expedite the proof, in a subsequent proceeding, of facts decided in a prior criminal proceeding.  The section declares that evidence of one fact – a prior conviction – is proof of another fact – the convicted person committed the crime – absent “evidence to the contrary.”
 
[18]      Under s. 22.1, proof of the prior conviction constitutes “proof” of all of the facts essential to that conviction absent “evidence to the contrary”:  Caci v. Dorkin, 2008 ONCA 750 (CanLII), 93 O.R. (3d) 701, at para. 15, leave to appeal refused, [2009] S.C.C.A. No. 2.  The section applies to convictions for provincial regulatory offences as well as convictions for criminal offences:  see Andreadis v. Pinto (2009), 2009 CanLII 50220 (ON SC), 98 O.R. (3d) 701, at paras. 11-16 (S.C.).
[19]      “Evidence to the contrary” under s. 22.1 refers to evidence that contradicts the facts essential to the prior conviction.  For example, evidence that a driver who had been convicted of driving without insurance was in fact insured at the relevant time would constitute “evidence to the contrary” under s. 22.1 led to rebut the proof offered by evidence of the conviction.
b. By contrast, the abuse of process doctrine was held to be a common law doctrine developed to protect the integrity of the judicial process and not merely an evidentiary rule:
[20]     Unlike s. 22.1, the abuse of process doctrine is not an evidentiary rule.  It is a common law doctrine developed by the courts to protect the integrity of the adjudicative process. Abuse of process takes many forms.  This case is concerned with abuse of process by re-litigation of decided facts.  The doctrine precludes re-litigation when it would undermine the integrity of the adjudicative process.
c. It was held that the two concepts intersect at the phrase “evidence to the contrary” in s. 22.1 such that a party may attempt to lead “evidence to the contrary” to refute the presumption in s. 22.1 but the doctrine of abuse of process may foreclose that party from leading such evidence:
[21]     The operation of s. 22.1 and the abuse of process doctrine intersect at the phrase “evidence to the contrary” in s. 22.1. A party may lead “evidence to the contrary” to avoid the evidentiary rule established in s. 22.1. The abuse of process doctrine operates to foreclose a party from leading that “evidence to the contrary” when to do so would constitute an abuse of the court’s process:  see Bank of Montreal v. Woldegabriel, [2007] O.J. No. 1305, at paras. 47-48 (S.C.).
[22]      The interaction between abuse of process and s. 22.1 is explained in CUPE, at paras. 18-19:
… s. 22.1 contemplates that the validity of a conviction may be challenged in a subsequent proceeding, but the section says nothing about the circumstances in which such challenge is or is not permissible. That issue is determined by the application of such common law doctrines as res judicata, issue estoppel, collateral attack and abuse of process.  Section 22.1 speaks of the admissibility of the fact of the conviction as proof of the truth of its content, and speaks of its conclusive effect if unchallenged…
… s. 22.1 renders the proof of the conviction admissible.  The question is whether it can be rebutted by “evidence to the contrary.” There are circumstances in which evidence will be admissible to rebut the presumption that the person convicted committed the crime, in particular where the conviction in issue is that of a non-party. There are also circumstances in which no such evidence may be tendered.  If either issue estoppel or abuse of process bars the re-litigation of the facts essential to the conviction, then no “evidence to the contrary” may be tendered to displace the effect of the conviction. In such a case, the conviction is conclusive that the person convicted committed the crime.  [Emphasis added by the Court.]
d. The application judge was thus held to have erred in concluding that the motion was dependent on whether or not Federated had led sufficient “evidence to the contrary” to rebut evidence of Cadieux’s conviction. The Court held that the motion did not depend on that but, rather, on whether or not Federated had satisfied the arbitrator that it should be permitted to challenge the prior conviction with that “evidence to the contrary” in the context of the abuse of process doctrine:
[25]      The application judge erroneously held, at paras. 41-42, that the preliminary motion turned on whether Federated had led sufficient “evidence to the contrary” to rebut the evidence offered by proof of Mr. Cadieux’s conviction for driving without insurance.  The outcome of the motion depended, not on whether Federated had led “evidence to the contrary” under s. 22.1, but on whether Federated had satisfied the arbitrator that in the circumstances it should be permitted to challenge the prior conviction with “evidence to the contrary.” Federated’s evidence that the Intact policy had not been properly cancelled was offered to demonstrate that if Federated was allowed to re-litigate Mr. Cadieux’s insurance status, it had evidence supporting its claim that Mr. Cadieux was insured.  
e. The application judge was held to have further erred in concluding that the fact that Federation had not been a party to the traffic proceedings was an irrelevant factor in considering the application of the abuse of process doctrine:
[26]      The confusion between the evidentiary rule in s. 22.1 of the Evidence Act and the abuse of process doctrine reappeared when the application judge considered Federated’s submission that it should be allowed to re-litigate the insurance coverage issue because it had not been a party to the proceedings in which Mr. Cadieux had been convicted of driving without insurance. The application judge correctly pointed out that a litigant could use s. 22.1 to prove a prior conviction, even if that litigant was not a party to the proceedings in which the conviction was entered.  However, the application judge erred in law in concluding that the reach of s. 22.1 rendered Federated’s non-involvement in Mr. Cadieux’s prosecution irrelevant for the purposes of the abuse of process doctrine. That doctrine turns ultimately on whether fairness requires re-litigation. The role played in the earlier proceeding by the party seeking to re-litigate a fact is an important consideration in deciding whether re-litigation constitutes an abuse of process. Fairness is more likely to favour re-litigation if the party seeking to re-litigate did not have an opportunity to litigate the issue at the prior proceeding: Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481, at paras. 57-58, per Goudge J.A., dissenting, approved 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307.  The evidentiary reach of s. 22.1 of the Evidence Act has no relevance to that fairness inquiry.
2. It was held that the application judge’s errors were not necessarily determinative and the Court went on to consider whether the abuse of process doctrine precluded re-litigation of whether Cadieux was uninsured at the time of the accident.
3. The Court noted that the abuse of process doctrine was designed to prevent re-litigation as explained in the leading CUPE case:
a. The Court held as follows:
[28]      The abuse of process doctrine as it is applied to prevent re-litigation is explained in CUPE. I take the following points from the reasons of Arbour J.:
  • The abuse of process doctrine is a manifestation of a court’s inherent power to prevent misuse of its process by re-litigation of previously decided facts: CUPE, at para. 37;
  • The doctrine is primarily focused on preserving the integrity of the administration of justice rather than protecting the interests of individual litigants: CUPE, at para. 43;
  • Re-litigation inevitably has a detrimental effect on the due administration of justice. It can lead to inconsistent and even irreconcilable results, devalue finality, and cause the expenditure of resources, both public and private, on further proceedings with no guarantee that the second result will be more accurate than the first: CUPE, at paras. 38, 51-52;
  • Re-litigation should thus be avoided unless “the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole”: CUPE, at para. 52;
  • There is no closed list of the circumstances in which re-litigation is necessary. Courts will permit re-litigation if in the specific circumstances “fairness dictates that the original result should not be binding in the new context”: CUPE, at paras. 52-53.
[29]      The factors informing the fairness of permitting re-litigation in a given case will vary with the circumstances. CUPE identified some of those factors, at paras. 52-53. Other cases have identified other factors: see e.g. Hanna v. Abbott (2006), 2006 CanLII 27865 (ON CA), 82 O.R. (3d) 215, at para. 32 (C.A.); Canam Enterprises Inc., at paras. 57-60; and Becamon v. Wawanesa Mutual Insurance Company, 2009 ONCA 113 (CanLII), 94 O.R. (3d) 297, at paras. 17-21.
b. The Court concluded that there are many factors to consider in determining the abuse of process issue, four of which were relevant in this case: the parties to the two proceedings, the nature of the initial proceeding (traffic prosecution), the potential consequences/stakes of the initial proceeding and the nature of the second proceeding (the arbitration).

c. In discerning the first factor (the parties of the two proceedings) it was noted that neither Federated nor Intact were parties or shared any interest in common with either the prosecution or Cadieux in the traffic proceedings. Intact could not complain that re-litigation of Cadieux’s insurance status in the subsequent arbitration forced it to reprove of fact that it had already spent time and money proving because Intact had not been involved in the traffic proceeding. Contrary to what the application judge decided, the Court found that the fact that Federated had not been involved in the traffic proceeding, and had not had any opportunity to litigate the insurance issue, mitigated in favour of permitting Federated to re-litigate that issue in the context of the arbitration.
d. As to the nature of the proceeding, the Court held that this could be looked at on a general level (involving an analysis of the statutes and rules governing the traffic proceeding) and at a specific level (in which the actual conduct of the previous proceeding is considered). It was held that it is incumbent on a party taking a position on the abuse of process argument to lead evidence to support its proposition.
i. The Court held as follows:
[37]      Arguments directed at the nature of the initial proceeding can be made at a general and a specific level.  The former looks to the statutes and rules governing the conduct of the initial proceeding while the latter looks to the actual conduct of the specific proceeding in issue. Arguments that the procedures provided for in the relevant rules are so informal as to render the outcome of the initial proceeding unfair, or unreliable, can be made without evidence. However, if a party seeks to rely on the conduct of the specific prior proceeding, either to support or counter an abuse of process argument, it is incumbent on that party to lead evidence to support its position. For example, if one party claims that the conviction entered in the prior proceeding should not foreclose re-litigation because the accused did not understand the charge, or did not defend the charge, it falls on that party to lead evidence to support its claim. Equally, if a party seeking to invoke the abuse of process doctrine at the subsequent proceeding asserts that exactly the same factual issues were fully litigated at the prior proceeding, it falls on that party to lead evidence to support that position.
ii. The Court held that there was no reason to doubt the fairness of the traffic proceeding or to discount the reliability of the finding of facts therein, which mitigated against allowing Federated to re-litigate the insurance issue in the arbitration.
e. In regards to the third factor, arguments as to whether or not the first proceeding is too minor to generate a full and robust response can also be looked at on a general or specific level and, in this case, mitigated against allowing Federated to re-litigate the insurance issue in the arbitration:
[41]      The third factor set out above focuses on the potential consequences of the proceedings to the parties.  As Arbour J. indicated in CUPE, at para. 53, if the stakes of the first proceeding are “too minor to generate a full and robust response,” fairness supports re-litigation of facts decided in the first proceeding, especially when the stakes in the second proceeding are considerably more significant:  see also Becamon, at para. 20.
 
[42]      As with arguments about the nature of the initial proceedings, arguments about the stakes of the first proceeding, both for and against the application of the abuse of process doctrine, can be made on a general or specific level.  If the statute calls for a minimal penalty, the argument can be made that a party would not spend the time or money needed to make a “full and robust response” to the charge.  However, if the potential penalties are significant, one can argue that those penalties would naturally generate a full and vigorous defence. 
 
[43]      Apart from arguments based on the penalties provided by the applicable legislation, it can be argued that the outcome of the initial proceeding was particularly important, or unimportant, to the parties:  see e.g. Duncan v. Morton, 2013 ONSC 3105 (CanLII), [2012] I.L.R. I-5297, at paras. 27-28, leave to appeal to Divisional Court refused, 2012 ONSC 5200 (CanLII).  If that kind of argument is to be advanced, the party making the argument must lead evidence to support it.  No such evidence was led in this case. 

[44]      A conviction for driving without insurance carries a minimum fine of $5,000 and a potential licence suspension.  I agree with the application judge that those consequences are sufficiently serious to assume that a person facing that charge would make a “full and robust” defence, if he had one.  The potential outcome of the initial proceeding does not favour allowing Federated to re-litigate the finding that Mr. Cadieux drove without insurance. 
f. In regards to the fourth factor, the Court noted that while any attempt to re-litigate an issue has some negative impact on the integrity of the justice system, the extent of that impact varies with the context of each case. The facts in this case were held to be very different from that in CUPE such that it would not reflect negatively on the justice system to allow Federated to re-litigate the issue in the context of an arbitration. Indeed, an arbitration is particularly well suited to a determination of these issues:
[47]      The facts of this case are far removed from those of CUPE. Federated seeks to re-litigate Mr. Cadieux’s status as an insured driver in the context of a private dispute between Federated and Intact over the obligation to pay Statutory Accident Benefits under a priority scheme designed to allocate the responsibility for those payments as among insurers. While there is certainly a public interest in protecting the passenger’s right to Statutory Accident Benefits under the Insurance Act, there is little, if any, public interest in the determination of which of the two insurers involved in the proceeding should pay those benefits.
[48]      The arbitration proceeding is particularly well-suited to a determination of whether Mr. Cadieux was an insured driver at the relevant time. Both Intact and Federated have the means and expertise to fully litigate the issue. Both also have ready access to the information necessary to accurately determine whether the policy was properly cancelled.  In my view, determining Mr. Cadieux’s insurance status in the context of the arbitration between Intact and Federated is likely “to enhance the credibility and the effectiveness of the adjudicative process as a whole”: CUPE, at para. 52.
 
[49]      Realistically, I see no danger to the overall integrity of the adjudicative process flowing from a re-litigation of Mr. Cadieux’s insurance status in a private arbitration between Federated and Intact. Even if that re-litigation were to produce a finding that is inconsistent with the finding underlying Mr. Cadieux’s conviction, that inconsistency would do little, if any, damage to the integrity of the process. A balancing of systemic concerns that inevitably arise if re-litigation is permitted against fairness to the litigants, and in particular Federated, favours re-litigation in these circumstances. 
4. The Court held that, overall, the arbitrator had come to a correct conclusion in holding that Federated could lead evidence to show that the Intact policy was in force at the time of the accident:
[51]      In my view, fairness to Federated strongly dictates that it should have an opportunity to demonstrate that Mr. Cadieux was insured at the time of the accident. Intact suffers no unfairness in allowing Federated that opportunity.  In addition, re-litigation of Mr. Cadieux’s insurance status in the context of the private arbitration between the insurers has no negative impact on the integrity of the overall adjudicative process and may in fact enhance that integrity by generating a more reliable result. These factors combine to satisfy the onus on Federated to show that re-litigation would not constitute an abuse of process. 

 
III. COMMENTARY
 
The same result would probably occur in Alberta, notwithstanding that Alberta legislation is somewhat different than the Ontario Evidence Act, s. 22.1. Under the Alberta Evidence Act, R.S.A. 2000, c. A-18, s. 26 applies. S. 26(2) provides that evidence of a prior conviction is admissible in a civil proceeding to prove that the person in question committed the offence. Section 26(3) provides that the tendering of a certificate of conviction is proof of the identity of the offender and of his/her conviction or finding of guilt. Section. 26(6) provides that the weight the civil court is to give to the previous conviction is to be determined by the civil judge or jury. Thus, in Alberta, we submit that Federated would be entitled to tender the evidence that the Intact policy had not been properly cancelled. The abuse of process doctrine would be applied in the same way to lead to the same conclusion.

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For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.