Preparation for Trial
| Author | Nathalie Des Rosiers; Louise Langevin |
| Pages | 229-264 |
Chapter
5
Preparation
for
Trial
387. Introduction
—
We
will
now
examine
the
rules
of
procedure
applicable
to
filing
an
action
for
sexual
and
spousal
abuse.
Of
par-
ticular
interest
are
those
issues
problematic
for the
victims
of
such
abuse. Initially,
the
preliminary
steps
taken
prior
to a
proceeding
will
be
examined. These
raise
many questions: When
is the
best
time
to
sue?
How
should
one
draft
pleadings
so
that
they
are
able
to
defeat
a
motion
for
particulars
but at the
same time
are
sufficiently
flexible to
adapt
to
changes
in the
law?
How
should
one
prepare
and
protect
the
client during
the
discovery process? Finally,
how
does
one
best
represent
the
client
in an
out-of-court
settlement?
I.
WHEN
TO
FILE SUIT
388.
Need
for
Speed
—
Prescription
delays demand
a
certain
rapid-
ity
when
instituting
civil actions. What
is one to do
when concurrent
remedies
can or
must
be
initiated? Prior
to
serving notice
of a
civil
action,
is it
wiser
to
wait
until
a
claim
filed
under
the
Crime Victim's
Compensation
Act
(C.V.C.A.)
has
been processed,
or
until
the
crim-
inal
trial
is
completed? What
are the
possibilities
of a
class action
suit? What would
be the
potential
effect
of
such
a
suit
on
individual
actions?
389. Cumulating
an
Application under
the
C.V.C.A.
and a
Civil
Suit
- The
C.V.C.A.
imposes
a
one-year delay
as
of
the
date
on
which
the
injury
manifests
itself.1
It is
thus
important
to
quickly
set the
administrative procedure
in
motion.
It is no
doubt preferable
to
sus-
1. Section
11
Crime
Victims
Compensation
Act,
R.S.Q.,
c.
1-6
(hereinafter
C.V.C.A.).
This delay
is
extended
to
three years
in the new Act
Respecting
Assistance
and
Compensation
for
Victims
of
Crime,
S.Q.
1993,
c. 54,
which
is
still
not yet in
force.
For a
discussion
of the
proposed amendments,
as
well
as
the
measures
the
plaintiff
may
invoke
in
order
to
extend
the
prescription
period,
see
above,
at
§372.
229
230
INSTITUTING PROCEEDINGS
pend
prescription (section
12
C.V.C.A.)
by
first
filing
a
claim with
the
Commission
de la
sante
et de la
securite
au
travail
(C.S.S.T.),
which
is
responsible
for
administering
the
C.V.C.A.
Indeed,
the
vic-
tim may use any
monetary support received
from
the
C.S.S.T.
to
help
finance
her
civil action
and
especially
any
therapy being pur-
sued. While
the
legislative
scheme
of the
C.V.C.A. appears
to
indi-
cate
that
the
victim must
opt for
either
a
civil action
or the
statutory
remedy,
nothing
in the law
obliges
her to
wait
for the
conclusion
of
the
application
filed
with
the
C.S.S.T.
It
would therefore
be
advan-
tageous
to
start
civil proceedings
as
well.2
The
commission evidently
enjoys
a
right
of
subrogation3
in the
event
the
civil action
succeeds,4
and
the
damages awarded will
be
used
to
reimburse
any
indemni-
ties
received.
390. Cumulating Criminal
and
Civil
Proceedings
- It is
much more
difficult
to
manage
the
interaction between
the
criminal
and
civil
proceedings.
The
civil action frequently
takes
place once
the
crimi-
nal
proceedings have concluded.
In
fact,
a
guilty conviction
may
encourage
the
victim
to
file
suit
before
the
civil
courts.5
However,
because
the
burden
of
proof
is
different,
a
finding
of not
guilty does
not
rule
out a
civil
action.6
The
true
complications
arise
with con-
comitant proceedings. Thus,
the
question arises, should
a
civil
action
be
delayed because
of a
criminal
trial?
391.
The
Common
Law
Solution
-
There
is no
automatic
right
to
suspend civil proceedings
in
Canadian
common
law due to
pending
criminal charges based
on the
same
incidents.7
Such
a
suspension
is
2.
Section
10
C.V.C.A.
3.
Section
9
C.V.C.A.
4.
Subsection
8 (2)
C.V.C.A.
states
that
"If the sum
awarded
and
collected under
civil proceedings
is
less
than
the
amount
of the
compensation
the
claimant
would
have
obtained
under
this
act,
he may
invoke
this
act to
claim
the
dif-
ference
by
notifying
the
Commission
and
filing
his
application
within
one
year
from
the
date
of the
judgment."
5.
See
below,
at
§§536ff.
6.
See the
discussion
on the
degree
of
proof required, below,
at
§§470ff.
Under
section
13
C.V.C.A.,
above, note
1, it is
possible
to
file
an
application
"whether
or
not any
person
is
prosecuted
for or
convicted
of the
offence
giving
rise
to
material
damage, injury
or
death";
the
Commission can,
of its own
initiative,
or
upon application
of the
attorney
general,
adjourn
the
proceedings pending
the
termination
of
prosecution.
7.
See
Stickney
v.
Trusz
(1974),
2
O.K.
(2d) 469, upheld
by the
Divisional Court,
(1974)
3
O.K.
(2d)
538 and the
Ontario
Court
of
Appeal, (1974)
3
O.K.
(2d)
539
(leave
to
appeal
to the
Supreme Court
of
Canada denied:
[1974]
S.C.R. xii);
see
also
the
decision
by the
British
Columbia Court
of
Appeal
in
Haywood
PREPARATION
FOR
TRIAL
231
permitted
only under exceptional circumstances where
the
accused's
rights
may be
prejudiced.8
Courts
in the
common
law
provinces have applied
this
principle
to
proceedings
instituted
by
sexual
abuse
victims.9
To
date,
the
argument
that
the
duty
to
testify
in
civil proceedings violates section
7 of the
Canadian Charter
of
Rights
and
Freedoms
has
been
rejected.10
In
Belanger
v.
Caughell,
the
Ontario Court
General
Division explained
the
following:
"Assuming
for the
purpose
of
this
motion
that
the
compulsion
to
attend
upon
discovery
imposed
on the
defendant
by the
Rules
of
Civil
Procedure
constitutes
an
infringement
of the
defendant's
right
to
lib-
erty,
the
circumstances
of the
deprivation
of
liberty
are
not,
in my
view,
contrary
to the
principles
of
fundamental
justice.
I
believe
that
the
protection
given
to the
defendant
by the
provisions
of s.
ll(c)
and
s. 13 of the
Charter
. . .
provide
to the
defendant
sufficient
protec-
tion."11
Securities
Inc.
v.
Inter-Tech Resource
Group
inc. (1985),
68
B.C.L.R.
145
(B.C.
C.A.)
(appeal rejected
14
December 1990, S.C.C. Bulletin, 1990,
p.
2872).
See
also
John
Sopinka, Sidney
N.
Lederman,
and
Alan
W.
Bryant,
The Law of
Evidence
in
Canada (Toronto:
Butterworths,
1992)
at
611.
8.
Note,
on
this
subject,
the
possibility
of
obtaining
an
order banning
the
publi-
cation
of the
civil proceeding record until
the
conclusion
of the
criminal pro-
ceedings.
See
J.L.D.
v.
Vallee,
[1996]
R.J.Q.
2480 (Que.
C.A.).
See
also L.H.
v.
Caughell,
[1996] O.J.
No.
3331 (Ont. Gen. Div.) (Q.L.), where
the
Ontario court
adopted
the
principle
that
evidence obtained during discovery should
be
used
only
for
the
purposes
of the
civil proceedings.
The
court
did not
allow
the
plain-
tiff
to
transmit
certain
documents
to the
disciplinary committee, which
had
also
instituted
proceedings against
the
defendant,
a
doctor accused
of
sexually
assaulting
the
plaintiff.
The
court applied
the new
regulation
61/96, adopted
under
the
Courts
of
Justice Act, R.S.O. 1990,
c.
C.43, adding Rule 30.1
to the
rules
of
practice. This
rule
presumes
that
there
is an
undertaking
not to use
evidence
obtained
during
the
discovery
other
than
in the
civil proceedings.
9.
See,
for
example, S.A.G.
v.
Kenneth Norman
Numella,
[1996]
B.C.J.
No. 527
(B.C.
S.C.)
(Q.L.),
(1996)
21
B.C.L.R. (3d)
42,
(1996)
48
C.P.C. (3d) 236, where
the
defendant wanted access
to the
transcript
of
the
examination
on
discovery
on
the
grounds
his
answers
to the
questions could
be
used against
him in the
criminal proceedings.
The
judge denied
the
defendant's motion
for
suspension
of
proceedings.
See
also
Belanger
v.
Caughell
(1995),
22
O.R. (3d)
741
(Ont.
Ct.
Gen.
Div.),
that
dismissed
a
motion
by a
doctor, sued
for
sexual
assault,
who
sought
the
suspension
of
civil proceedings while
the
criminal proceedings were
taking place.
The
interest
of the
child
in
youth protection proceedings
demands
that
such proceedings
not be
suspended while awaiting
the
outcome
of
criminal proceedings:
See
Catholic Children's
Aid
Society
of
Metropolitan
Toronto
v.
L.M.O. (1996),
139
D.L.R. (4th)
534
(Ont. Gen.
Div.),
affd
(1997),
149
D.L.R. (4th)
464
(Ont.
C.
A.).
10.
Part
I of the
Constitution
Act
1982, being Schedule
B of the
Canada
Act
1982
(1982, U.K.,
c.
11).
11.
Above,
note
9 at
748.
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