K.F. et al. v. White, (2001) 142 O.A.C. 116 (CA)

• Judge: Goudge, Borins and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 14, 2000
• Jurisdiction: Ontario
• Citations: (2001), 142 O.A.C. 116 (CA);2001 CanLII 24020 (NS CA);2001 CanLII 24020 (ON CA);53 OR (3d) 391;198 DLR (4th) 541;[2001] OJ No 847 (QL);103 ACWS (3d) 944;142 OAC 116;3 CPC (5th) 189;49 WCB (2d) 322

K.F. v. White (2001), 142 O.A.C. 116 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. MR.034

K.F., J.F. (a minor by his litigation guardian K.F.) and J.F. (a minor by her litigation guardian K.F.) (plaintiffs/respondents) v. Samuel Ian White (defendant/appellant)

(C34114)

Indexed As: K.F. et al. v. White

Ontario Court of Appeal

Goudge, Borins and Sharpe, JJ.A.

March 12, 2001.

Summary:

A jury convicted the defendant of sexually assaulting the plaintiff. He was sentenced to 18 months' imprisonment. The plaintiff sued the defendant for damages on her own behalf and as litigation guardian for her two minor children. The defendant filed a statement of defence and counterclaim to the action: (1) denying that the contact between the plaintiff and himself constituted sexual assault, and stating that sexual contact between them was consensual; 2) denying that his sexual contact with the plaintiff caused her injury and claiming that if she suffered such injuries, they were self-inflicted or caused by activities or conditions unrelated to him; 3) claiming that the plaintiff abused the process of the court by maliciously instituting criminal proceedings without reasonable cause; and 4) claiming that the plaintiff defamed him by speaking about the allegations in the statement of claim. The plaintiff moved for, inter alia, summary judgment on the issue of liability and, alternatively, for an order striking out the majority of the statement of defence as an abuse of the court's process. She also sought orders striking out the counterclaim as disclosing no reasonable cause of action and directing that the examinations for discovery of the plaintiff and her children proceed in the defendant's absence. The defendant cross-moved for the production of documents from non-parties, predominantly records from physicians who had treated the plaintiff.

The Ontario Superior Court, in a decision reported [2000] O.T.C. 182, granted summary judgment for the plaintiff on the liability issue. The court struck the counterclaims because they disclosed no reasonable cause of action. The court refused production of the plaintiff's medical records on the basis that the records were either irrelevant or privileged. The court also ordered that the defendant not be present during the examinations for discovery of the plaintiff and her children. The defendant appealed and the plaintiff appealed an order that costs be assessed.

The Ontario Court of Appeal dismissed the appeal and cross-appeal.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See second Evidence - Topic 103 ].

Evidence - Topic 103

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - Effect of prior criminal conviction - The plaintiff sued the defendant for damages for sexual assault, following the defendant's criminal conviction arising from the assault - The plaintiff moved for summary judgment - The motions judge granted summary judgment, holding that the criminal conviction was admissible as prima facie proof of the facts upon which the conviction was based - Since the defendant had put nothing before the court to rebut the prima facie evidence, the plaintiff was entitled to summary judgment on liability - The defendant appealed - The Ontario Court of Appeal dismissed the appeal - The court stated that where the convicted party offered no explanation and simply put forth the same evidence that was rejected and sought to relitigate precisely the same issue, there was no merit in allowing the matter to proceed to trial - See paragraphs 19 to 56.

Evidence - Topic 103

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - Effect of prior criminal conviction - The Ontario Court of Appeal reviewed the general principles applicable to the use of criminal convictions in subsequent civil proceedings, an in particular the effect of a conviction on a summary judgment application - The court discussed the application of the prima facie evidence standard and the doctrines of abuse of process and issue estoppel in this regard - See paragraphs 21 to 56.

Medicine - Topic 3090

Relation with patient - Charts, records, opinions and reports - Confidentiality - General - [See Practice - Topic 4576 ].

Practice - Topic 4576

Discovery - What documents must be produced - Privileged documents - Doctor and hospital records, etc. - The plaintiff sued the defendant for damages for sexual assault, following the defendant's criminal conviction arising from the assault - The defendant sought production of the plaintiff's medical records relating to her pre-assault medical history - The Ontario Court of Appeal held that the records were not privileged - The court, however, refused to order production where the defendant failed to show that the documents were relevant or that it would be unfair to require the defendant to proceed to trial without having discovery of the documents (Civil Procedure Rule 30.10) - The court therefore dismissed the defendant's motion for production, without prejudice to a further application on fresh material during the assessment of damages - See paragraphs 57 to 65.

Practice - Topic 4606

Discovery - Production of documents by nonparties - Doctor and hospital records - [See Practice - Topic 4576 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available - [See first Evidence - Topic 103 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - Following a ruling on a number of issues raised by motions, including a summary judgment motion, the motions judge ordered that costs be assessed - The plaintiff appealed the costs order - The Ontario Court of Appeal dismissed the appeal, where there was no reason to interfere with the discretion of the motions judge - The court noted that there was no hard and fast rule that costs of motions be fixed, and especially where a party sought a substantial award and a detailed review was required, the motions court judge had a discretion to order that the costs be assessed - See paragraphs 67 to 69.

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 130 D.L.R.(4th) 235; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 9].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81; 143 D.L.R.(4th) 1, refd to. [para. 13].

Hollington v. Hewthorn & Co., [1943] K.B. 587 (C.A.), refd to. [para. 19].

Del Core v. Ontario College of Pharmacists (1985), 10 O.A.C. 57; 51 O.R.(2d) 1, refd to. [para. 23].

Demeter v. British Pacific Life Insurance Co., Occidental Life Insurance Co. of California and Dominion Life Assurance Co. (1983), 43 O.R.(2d) 33 (H.C.), affd. (1984), 7 O.A.C. 143; 48 O.R.(2d) 266 (C.A.), refd to. [para. 24].

Taylor Estate v. Baribeau and Jacob (1985), 12 O.A.C. 344; 51 O.R.(2d) 541 (Div. Ct.), refd to. [para. 24].

Royal Bank of Canada v. McArthur et al. (1985), 10 O.A.C. 394; 51 O.R.(2d) 86 (Div. Ct.), refd to. [para. 24].

Hunter v. Chief Constable of the West Midlands Police et al., [1982] A.C. 529 (H.L.), refd to. [para. 25].

Nigro v. Agnew-Surpass Shoe Stores Ltd. et al. (1977), 18 O.R.(2d) 215 (H.C.), affd. (1977), 18 O.R.(2d) 714 (C.A.), refd to. [para. 28].

Bomac Construction Ltd. et al. v. Stevenson et al. (1986), 48 Sask.R. 62 (C.A.), refd to. [para. 28].

Q. v. Minto Management Ltd. (1984), 46 O.R.(2d) 756 (H.C.), refd to. [para. 29].

McCauley v. Vine, [1999] W.L.R. 1997 (C.A.), refd to. [para. 30].

McIlkenny v. Chief Constable of the West Midlands et al., [1980] 1 Q.B. 283 (C.A.), refd to. [para. 32].

Parklane Hosiery Co. v. Store (1979), 439 U.S. 322 (Sup. Ct.), refd to. [para. 38].

Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation (1971), 402 U.S. 313 (Sup. Ct.), refd to. [para. 38].

Canadian Tire Corp. v. Summers (1995), 23 O.R.(3d) 106 (Gen. Div.), refd to. [para. 40].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), refd to. [para. 40].

Toronto (City) v. Canadian Union of Public Employees, Local 79, [2000] O.J. No. 1570 (Div. Ct.), refd to. [para. 41].

Simpson v. Geswein (1995), 103 Man.R.(2d) 69; 38 C.P.C.(3d) 292 (Q.B.), refd to. [para. 46].

C.D.C. v. Starzecki, [1996] 2 W.W.R. 317 (Man. Q.B.), refd to. [para. 47].

Holt v. MacMaster and Buteau (1993), 140 A.R. 235; 18 C.P.C.(3d) 220 (Q.B.), refd to. [para. 48].

Gosse v. House (1997), 158 Nfld. & P.E.I.R. 31; 490 A.P.R. 31; 17 C.P.C.(4th) 33 (Nfld. T.D.), refd to. [para. 48].

Kuin v. 238682 Alberta Ltd. et al. (1997), 211 A.R. 161; 16 C.P.C.(4th) 62 (Q.B. Master), refd to. [para. 48].

Brinks Ltd. v. Abu-Saleh, [1995] 1 W.L.R. 1478 (Ch. D.), refd to. [para. 48].

G. et al. v. Chaykowski, [1999] 4 W.W.R. 228; 223 A.R. 346; 183 W.A.C. 346 (C.A.), refd to. [para. 49].

Ridley v. Banshard Mutual Insurance Co., [1995] O.J. No. 1922 (Gen. Div.), refd to. [para. 49].

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 51].

Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R.(3d) 25 (Gen. Div.), refd to. [para. 51].

Royal Bank of Canada v. Feldman (1995), 23 O.R.(3d) 798 (Gen. Div.), appeal quashed (1995), 27 O.R.(3d) 322 (C.A.), refd to. [para. 51].

Cook v. Washuta (1985), 11 O.A.C. 171; 52 O.R.(2d) 289 (C.A.), refd to. [para. 61].

Cook v. Ip et al. - see Cook v. Washuta.

Morse Shoe (Canada) Ltd. v. Zellers Inc. et al. (1997), 100 O.A.C. 116; 10 C.P.C.(4th) 390 (C.A.), refd to. [para. 63].

Bell Canada v. Olympia & York Developments Ltd. et al. (1994), 70 O.A.C. 101; 17 O.R.(3d) 135 (C.A.), refd to. [para. 68].

Murano et al. v. Bank of Montreal et al. (1998), 111 O.A.C. 242; 41 O.R.(3d) 222 (C.A.), refd to. [para. 68].

Statutes Noticed:

Evidence Act, R.S.O. 1990, c. E-22, sect. 22.1 [para. 21].

Rules of Civil Procedure (Ont.), rule 30.10 [para. 63].

Victims Bill of Rights, S.O. 1995, c. 6, sect. 3 [para. 21, footnote 1].

Authors and Works Noticed:

American Jurisprudence, Judgements, Effect of Criminal or Civil Nature of Prior Judgement, vol. 47, § 732 [para. 37].

Herman, Michael, and Hayden, Gerald, Issue Estoppel: Mutuality of Parties Reconsidered (1986), 64 Can. Bar Rev. 437, generally [para. 34]; p. 401 [para. 35].

Lange, Donald, The Doctrine of Res Judicata in Canada (2000), pp. 399 [para. 42]; 400 [para. 29].

McLaren, Ian, Challenging Convictions in Civil Proceedings (1999), 149 New L.J. 6875, generally [para. 30].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 1119, 1120 [para. 24].

Vella and Grace, Civil Liability for Sexual Abuse and Violence in Canada (2000), p. 326 [paras. 43, 44].

Watson, Garry, Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality (1990), 69 Can. Bar Rev. 623, pp. 624 [para. 41]; 629 [para. 34]; 648 to 652 [para. 41]; 656 [para. 36].

Counsel:

Loretta P. Merritt, for the defendant/appellant;

Diane Oleskiw, for the plaintiffs/respondents.

This appeal was heard on December 14, 2000, before Goudge, Borins and Sharpe, JJ.A., of the Ontario Court of Appeal. On March 12, 2001, Sharpe, J.A., released the following decision for the Court of Appeal.