QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 33 Date: 2008 01 22 Docket: Q.B.G. 120/2007 Judicial Centre: Regina BETWEEN: JIM WINDREM PLAINTIFF (DEFENDANT BY COUNTER-CLAIM) and MAURICE COUTURE and SANDRA COUTURE and WINDMILL GREENHOUSES DEFENDANTS (PLAINTIFFS BY COUNTER-CLAIM) Counsel: Kelly Onyskevitch for the plaintiff David Barth for the defendant, Maurice Couture for the defendants (plaintiffs by counter-claim) Sandra Couture and Windmill Greenhouses JUDGMENT GUNN J. January 22, 2008 [1] Maurice Couture, Sandra Couture and Windmill Greenhouses (“the applicants”) apply for an order pursuant to Rule 173 of The Queen’s Bench Rules of Court striking paragraphs 10, 10(a), 11, 12, 13 and 14 from Jim Windrem’s amended statement of claim on the basis that permitting these allegations in the statement of claim to remain would be an abuse of process. [2] Rule 173 of the Rules provides as follows: 173. The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: ... (e) it is otherwise an abuse of process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly or may grant such order as may be just. Unless otherwise directed, the offending party shall pay double the costs to which the other party would otherwise be entitled. [3] The relevant paragraphs of the amended statement of claim are the following: 10. On or about May 29, 2003, the Plaintiff states that he was operating motorized lawnmower on his property when he was physically assaulted by the Defendant, Maurice Couture. During the assault, the Plaintiff was struck in the head with an unidentified object, believed to be pipe or board. The Plaintiff states that no words were exchanged between he and the Defendant and the assault was unprovoked. 10A. At the time of the assault, the Defendant, Maurice Couture, was acting in the course of his duties as partner in the operation of WindMill Greenhouses and the said partnership, and the Defendant, Sandra Couture, are vicariously liable for the actions of the Defendant, Maurice Couture and the assault occasioned upon the Plaintiff. With respect to vicarious liability the Plaintiff pleads and relies on sections 12 and 14 of The Partnership Act R.S.S. 1978 c. P-13. 11. The Plaintiff states that as result of the assault by the Defendant, Maurice Couture, he has suffered significant injury and endured considerable physical pain. Particulars of the injuries sustained by the Plaintiff, caused by the Defendant’s assault, include, inter alia, the following: a. traumatic ruptures of the cornea; b. extensive anterior segment disruption; c. disruption of posterior segment/retina The Plaintiff states that he has had to undergo surgery for left corneal transplant and retinal detachment repair. The Plaintiff claims general damages for pain and suffering, in an amount to be proven at trial. 12. The Plaintiff states that as result of the assault by the Defendant, Maurice Couture, the Plaintiff has endured, inter alia, physical pain and emotional distress. The Plaintiff suffers and will continue to suffer from emotional and nervous upset occasioned by his injuries and loss of enjoyment of life. The Plaintiff claims general damages for past and future loss of enjoyment of life, in an amount to be proven at trial. 13. As further result of the assault of the Defendant, Maurice Couture, the Plaintiff has incurred special damages, the particulars of which have not yet been ascertained but when ascertained will constitute special damages, in an amount to be proven at trial. 14. On or about March 9, 2004, following trial, the Defendant, Maurice Couture, was convicted of the criminal offence of assault causing bodily harm to the Plaintiff contrary to s. 267 of the Criminal Code of Canada. [4] Maurice Couture deposes that the above paragraphs of the amended statement of claim deal with the fact that Jim Windrem attacked him and the fact that he struck Mr. Windrem in self defence. Mr. Couture deposes that after this incident he was charged with committing an assault on Jim Windren that caused bodily harm to him. Mr. Couture was convicted in Provincial Court and on appeal in judgment dated December 29, 2004 the conviction was quashed by Dawson J. and new trial was ordered. [5] When the matter was returned to the Provincial Court for new trial, Mr. Couture was convicted again by Kovatch J. on April 6, 2006. This conviction was overturned on appeal by MacDonald J. on July 26, 2007 and she ordered that an acquittal be entered against Mr. Couture. [6] Mr. Couture relies on the decision of MacDonald J. in this application. Mr. Couture deposes that the evidence at any future trial will be the same as the evidence heard by Kovatch J. 1. The Doctrine of Abuse of Process; 2. What is the effect of the acquittal in the criminal proceeding on the subsequent civil proceeding? Re: 1. The Doctrine of Abuse of Process [7] Rule 173 is codification of the court’s inherent jurisdiction over its own process. The courts have at various times described the object of Rule 173. Among such descriptions are the prevention of delay and the expense of trial founded upon an unreal claim or defence. In Smail Communications Slide Art Productions Ltd. v. Air Sask. Aviation Ltd. (1990), 1990 CanLII 7495 (SK QB), 89 Sask R. 16 (Q.B.) Grotsky J. wrote at p. 24: [43] For case to be considered frivolous, vexatious, or an abuse of process, the alleged cause of action...must be such that no reasonable person could treat it as bona fide and contend that he was entitled to approach the court with such complaint... [emphasis in original] [8] In Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (Sask. C.A.); 32 W.A.C. 133 Justice Sherstobitoff reviewed the procedure to be followed on an application under Rule 173. He said the following in relation to an application to strike on the basis of an abuse of process at para. [18] Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th Ed. says at pp. 153-154: “If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved....” [9] The doctrine of abuse of process was dealt with recently by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] S.C.R. 77. Arbour J. speaking for majority of the court said the following at para 37: 37 In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in way that would...bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55 per Goudge J.A., dissenting (approved [2002] S.C.R. 307, 2002 SCC 63 (CanLII))). Goudge J.A. expanded on that concept in the following terms at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in way that would be manifestly unfair to party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] W.L.R. 347 at p. 358, [1990] All R. 990 (C.A.). One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate claim which the court has already determined. [Emphasis added] [Emphasis in original] Justice Arbour went on to say the following at para 52: 52... It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk [v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] S.C.R. 460] at para. 80. Re: 2. What is the effect of the acquittal in the criminal proceeding on the subsequent civil proceeding? [10] A verdict of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence. (See Rizzo et al v. Hanover Insurance Co., (1993), 1993 CanLII 8561 (ON CA), 14 O.R. (3d) 98; 103 D.L.R. (4th) 577 (Ont. C.A.) (application for leave to appeal to the Supreme Court of Canada dismissed). Similarly verdict of acquittal in criminal trial cannot prevent the case proceeding in civil court. [11] In Montgomery v. Black, [1989] B.C.J. No. 1800 QL Melvin J. faced similar circumstance. He said at page of his decision: In my view there are good policy reasons in support of the conclusion that victim who is witness for the Crown in unsuccessful criminal proceedings should be entitled to proceed independently in subsequent civil proceedings against the same defendant. The conduct of an accused in the criminal context is that his conduct may be considered an offence against the State or the Queen’s peace. In civil proceedings it is wrong against the individual alone which is alleged and the law should not preclude plaintiff from proceeding civilly by the mere fact that criminal charge against an accused with reference to the same conduct has been dismissed. Otherwise, the victim may not wish to report criminal activity as it may preclude his subsequent opportunity to proceed civilly. There are different parties in civil proceedings from criminal and of course, different burden of proof. [12] Mr. Justice Melvin also quoted from Canadian Tort Law, Allen M. Linden, page 42: Conduct which amounts to the tort of battery or assault would also usually constitute criminal assault. defendant who punches someone in the nose is liable both for the tort of battery and the crime of assault. He may be sued by his victim for damages, and he may in addition be prosecuted by the Crown in the criminal courts. The outcome in each proceeding is irrelevant to the other since the parties, issues, and burdens of proof are somewhat different. One who is convicted of criminal assault is not immune from later civil action for the damages resulting from that assault, but he will be excused from paying punitive damages to his victim. [13] Mr. Couture relies on the decision of MacDonald J. where she says at para. 13 of her judgment that the actions of the appellant [Mr. Couture] were justified in the circumstances. He takes comfort in the fact that she did not say that the crown had failed to prove its case beyond reasonable doubt, or that the crown had failed to prove beyond reasonable doubt that Mr. Couture did not act in self defence. However it is clear from her decision that the main focus of the appeal was whether the Provincial Court judge had erred in his application of the law with respect to the defence of self-defence (para. of the MacDonald decision). [14] In the criminal proceedings brought by the crown against Mr. Couture, Mr. Windrem did not have control of the proceedings. As in all criminal cases, he was simply witness and was required to answer the questions of crown counsel in direct examination and to respond to the questions posed to him in cross-examination. He did not have control over the evidence to be presented or the questions to be asked. The crown bore the onus throughout to prove its case beyond reasonable doubt and to prove beyond reasonable doubt that the defence of self defence did not apply. (See R. v. Cinous, 2002 SCC 29 (CanLII), [2002] S.C.R. 3) [15] Whereas in the civil proceeding which is now before the court, Mr. Windrem as the plaintiff is in a position to control the presentation of his case and must prove his case on a balance of probabilities. The onus of proving self defence is on the defendant. He bears the onus of proving the assault was justified and was made with reasonable force. [16] In my view the paragraphs of the statement of claim which are at issue in this application do not amount to an abuse of process and the application is dismissed. The plaintiff will have his taxable costs in any event of the cause.
The applicants apply for an order pursuant to Rule 173 of The Queen's Bench Rules striking paragraphs of the amended statement of claim on the basis that permitting these allegations in the statement of claim to remain would be an abuse of process. The paragraphs of the amended statement of claim at issue deal with the fact that the plaintiff alleges he was assaulted by the defendant and sustained bodily harm. The defendant was charged with assault, but his conviction was overturned on appeal. The issue is the effect of the acquittal in the criminal proceedings on the subsequent civil proceedings. HELD: The paragraphs of the statement of claim at issue do not amount to an abuse of process and the application is dismissed. 1) A verdict of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence.  2) In the criminal proceedings brought by the Crown against the defendant, the Crown bore the onus throughout to prove its case beyond a reasonable doubt and prove beyond a reasonable doubt that the defence of self-defence did not apply and the plaintiff did not have control of the proceedings. In the civil proceeding, the plaintiff is in a position to control the presentation of his case and must prove his case on a balance of probabilities. The onus of proving self-defence is on the defendant. He bears the onus of proving the assault was justified and was made with reasonable force.