Civil Procedure – Appeal – Application to Strike, Civil Procedure – Court of Appeal Rules, Rule 46.1, Criminal Law – Evidence – Sentencing Submissions
The respondents applied to strike the appellant’s appeal pursuant to Court of Appeal rule 46.1 on the ground that it was an abuse of process, alleging that the appellant was trying to relitigate his criminal conviction. The appellant appealed the decision of a Queen’s Bench chambers judge that granted the respondents’ application under Queen’s Bench rule 7-1 to determine a point of law. The respondents had successfully argued that s. 104(2) of the Automobile Accident Insurance Act (AAIA) applied to their case, permitting their respective actions for bodily injury against the appellant. He had caused the vehicle accident in which they were injured and had been convicted of impaired driving contrary to s. 253(1)(a) of the Criminal Code. The vehicle accident in question occurred at 12:45 pm on April 6, 2014. The appellant admitted that he was the driver of the other vehicle, and he had left the scene of the accident. Before that accident, the appellant had been reported twice for erratic driving. He was eventually stopped by the police at 4 pm at a different place and charged with four offences, including impaired driving. In Provincial Court, the appellant pled guilty to the charges. Another Provincial Court judge sentenced him in October 2015. A certificate of recording was prepared pursuant to s. 30 of The Evidence Act concerning the evidence heard by the sentencing judge. The respondents commenced their civil actions against the appellant in November 2015, claiming general damages for pain and suffering. In his statement of defence, the appellant admitted that he was the driver but denied that he was convicted of impaired operation of a vehicle in relation to the collision and that the respondents had no right of action for non-economic loss under ss. 40.1 and 104 of the AAIA. The respondents then made their rule 7-1 application. A transcript of the criminal proceedings of October 2015 was attached as an exhibit to an affidavit filed on their behalf. In his affidavit, the appellant maintained that he was only charged with impaired driving in relation to his actions before his arrest at 4 pm. He was not informed that his arrest related to anything that had transpired earlier in the day. He submitted the police occurrence report in support of his position. The chambers judge noted that the only direct evidence tying the appellant’s conviction to the collision was that it involved the same vehicle as that the appellant had been driving at the time of his arrest, and that with his guilty plea, he may have admitted to being impaired at the time of the collision. Based on the transcript, the judge found that the appellant had entered a guilty plea before the sentencing judge. The proceedings were a blended form of guilty plea and sentencing submissions. The Crown had presented information about the events before the appellant’s arrest to have the court accept that it was he who had been driving at those times while impaired. The chambers judge found that the sentencing judge had accepted that the appellant had been driving while impaired at the time of the collision and that he had not objected to the Crown’s statement of facts. Although the charges had not stipulated the time of day or location where the offence was said to have occurred, it should have been obvious to the appellant from the Crown’s submissions that the scope of the charge was broader than just the events at the time of arrest. The appellant should have objected to the Crown’s sentencing submissions. Based on these findings of fact, the judge concluded that an action under s. 104 of the AAIA was available to the respondents. The grounds of appeal were whether the chambers judge: 1) erred in his interpretation of s. 104 and whether it could apply in these circumstances; and 2) erred in relying on the sentencing submissions recorded in the transcript to assess and determine the issue.
HELD: The application to strike the appeal was dismissed, and the appeal was allowed. The court found with respect to each issue that: 1) the chambers judge had not erred in his interpretation of the provision; and 2) as the appellant had not taken issue with the admissibility nor the use that could be made of the content of the sentencing transcript at the hearing below, it was a new issue on appeal. However, it decided that the appeal could be resolved on other grounds. The judge erred by characterizing the October 2015 proceeding as blended. The appellant had already pled guilty at a previous court appearance, a transcript of which had not been put into evidence by either party. Consequently, the mischaracterization of the sentencing hearing led the judge to err in principle by concluding what the appellant had said or not said amounted to an admission of facts, as alleged by the Crown. The judge also erred in relying on the sentencing submissions. There was no legal basis for him to treat what was said or not said at the sentencing hearing as an admission by the appellant. The transcript did not disclose the essential facts of the offence, and it was not open to the judge to accept as fact that the appellant was driving while impaired at the time of the collision for the purpose of conviction. In addition to mischaracterizing the evidence, the judge placed too much weight on the transcript and disregarded the contents of the police report, which was highly probative.