June 28th, 2013
If the OJ Simpson saga taught us anything it is that being acquitted of criminal charges does nothing to stop a civil action for damages from proceeding. Reasons for judgment were released last week by the BC Supreme Court, Vernon Registry, demonstrating this.
In the recent case (McClusky v. Desilets) the Plaintiff was profoundly injured in a single vehicle collision in 2008. The driver was charged with dangerous driving under the Criminal Code. The case proceeded to trial where he was acquitted. The Defendant then sought to have the lawsuit by the injured plaintiff against him dismissed arguing that “the issue of liability was determined when he was acquitted of criminal charges“.
Mr. Justice Steeves quickly dispatched this argument, finding the matter could proceed and ultimately determined that the defendant was negligent in causing the collision. In addressing the Defendant’s argument the Court provided the following reasons:
 With regards to the criminal charges against the defendant, he was charged with dangerous driving causing death and dangerous driving causing bodily harm. A trial was held in November 2010 and, on December 3, 2010, Mr. Justice Dley acquitted the defendant on all charges. Among other findings he concluded that there were insufficient factors on speed that would elevate the facts of the case to the level of a criminal offense. As a result it was not possible to conclude beyond a reasonable doubt that the defendant’s driving was objectively dangerous. Further, in reviewing all the evidence, the trial judge concluded that the defendant’s driving was not a marked departure from the standard of care that a reasonable person would observe in his circumstance (paras. 59, 61).
 It is now submitted on behalf of the defendant in this civil action that the issue of liability has been decided in his favour by the previous criminal proceedings. That is, he is not liable for the accident and the injuries to the plaintiff.
 The approach of previous decisions on this issue have focused on issue estoppel (Petrelli v. Lindell Beach Holiday Resort Ltd. 2011 BCCA 367 at para. 63; citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25). With regards to issue estoppel there are three preconditions: the same question has been decided in the previous proceeding, the previous decision was final and the parties in both proceedings are the same. In the subject case, the parties are not the same as the criminal proceeding and the issues of criminal negligence causing death and dangerous driving causing bodily harm are not the same issues as the civil liability of the defendant here. On this basis issue estoppel has no application.
 With regards to abuse of process, such an abuse has been found where an arbitrator was asked to re-litigate whether an employee was guilty of a criminal sexual assault. A previous criminal court had convicted the employee. The arbitrator found that that the employee had not committed the sexual assault and the courts set this decision aside (Toronto (City) v. CUPE (2001), 55 O.R. (3d) 541,149 O.A.C. 213).
 In the subject case, again, the defendant was acquitted of criminal charges with regards to the same incident that gave rise to this civil action. However, the cause of action in the latter is based in negligence not in the Criminal Code. I am not re-litigating whether the defendant committed a criminal offence, as was apparently the case in Toronto (City).
 I find that it is not an abuse of process for the plaintiff to seek civil damages against the defendant when the defendant had previously been acquitted of criminal charges.