Claims against uninsured motorists are common and are available to insurers pursuant to subsection 265(6) of the Insurance Act, R.S.O. 1990, c. I.8. In these cases, insurers often rely on a conviction against the uninsured motorist for driving without valid insurance at the time of the accident. Can the uninsured motorist then argue at a subsequent civil trial that, despite the conviction, they were actually insured at the accident? For example, can the motorist suggest that the conviction was based on a coerced guilty plea, or that there is new evidence to suggest that there was valid insurance? The short answer is, yes; however, a recent case from the Ontario Court of Appeal provides additional arguments against an uninsured motorist making such a claim.
Though the facts are slightly different in Intact Insurance Company v Federated Insurance Company of Canada, 2017 ONCA 73 (“Intact v Federated”), the Court of Appeal provides a helpful review of the relevant law and, of particular use, the previous conviction in that case related to the offence of driving without insurance.
The Use of a Conviction in Subsequent Proceedings
Section 22.1 of the Evidence Act, R.S.O. 1990, c. E.23 provides that evidence of a conviction of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person so convicted. It allows a party in a subsequent proceeding to bypass having to re-prove the facts leading up to the conviction. Section 22.1 applies to convictions for both provincial regulatory offences and criminal offences.
Section 22.1 also allows a party to bring “evidence to the contrary” to counter the presumption of proof of the offence. However, such evidence will not be allowed if doing so would result in an abuse of process. In such a case, as no evidence can be brought to the contrary, the conviction is conclusive that the person committed the crime.
What is “Abuse of Process”?
The abuse of process doctrine seeks to protect the integrity of the adjudicative process as opposed to protecting the interests of particular litigants. Re-litigation may affect this integrity because it may create potentially inconsistent results, a decreased likelihood of finality, and the incurring of unnecessary costs for proceedings that may not necessarily lead to a more accurate result.
Where fairness requires it however, a party may re-litigate a fact or set of facts. For example, where a party seeking to re-litigate did not have the opportunity to litigate the issue at the prior proceeding, fairness may favour re-litigation.
- Other factors informing the fairness analysis include, but are not limited to, the following:
- The similarity or difference between the parties and issues at the initial and subsequent proceedings.
- The nature of the initial proceedings: if the initial proceeding offered little procedural fairness, that would lend support for allowing re-litigation. With respect to a prosecution of an offence under the Provincial Offences Act, R.S.O. 1990, c. P.33 or the factual findings made under that prosecution, a court should have no reason to doubt the fairness of that proceeding in the absence of evidence to the contrary.
- The potential consequences of the initial proceedings: where the stakes of the initial proceeding are so minor that there is little impetus to “generate a full and robust response”, fairness supports re-litigation of the facts. For example, if the hearing calls for a minimal penalty, it can be argued that the stakes were minor to such a degree.
- The nature of the subsequent proceedings: re-litigation in certain contexts can have a greater impact on the integrity of the administration of justice than others. For example, in Intact v Federated, the Court found that this factor favoured re-litigation as there was little public interest in which insurer paid the Statutory Accident Benefits, and an arbitration was well-suited to determine whether the driver was an insured at the time of the accident.
- If there was a guilty plea in the original proceeding, was the plea voluntary, unequivocal, and informed? Voluntariness may be affected by the presence of pressure to enter the plea, the offer of a plea bargain or some other inducement by a person in authority, and/or the operation of a mental disorder on the mind of the accused. A plea may be considered uninformed if there is a language barrier that precludes the accused from understanding the plea or the charges against him or her. The absence of counsel in relation to the guilty plea may be a factor as well.
- Is there evidence available at the second proceeding that was not available at the original proceeding?
- The party seeking to re-litigate the facts has the onus of demonstrating that there will be no resulting abuse of process. In doing so, it is incumbent upon that party to bring evidence to support his or her position.
In the context of our hypothetical, where a motorist convicted of failing to carry insurance attempts to argue that they did, in fact, have insurance at a subsequent hearing, the following considerations should be offered to the court:
- The consequences attached to a conviction of driving without insurance are serious enough to assume that the defendant made a “full and robust” defence if he or she had one. The conviction carries with it a minimum fine of $5,000.00 and a potential driver’s license suspension of up to one year.
- Subject to any evidence that was not available at the provincial offences hearing, the defendant had ample opportunity to raise an argument that he or she did, in fact, have insurance.
- Unless the defendant has evidence to the contrary, there is no reason to assume that the provincial offences hearing denied him or her any procedural fairness.
- If the defendant suggests that he or she made a guilty plea, did the defendant provide evidence to suggest that the plea was not voluntary, unequivocal, or uninformed?
Of course, the motorist will have to bring evidence to support his or her position. If the evidence is lacking in any respects, it is appropriate to suggest that the defendant has not met the onus of proof.