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Digest of the Week — Balance of Convenience in Stay Application

Phillion v. Ontario (Attorney General) |  (WestlawNext Canada)
2014 CarswellOnt 10370 | 
Ontario Court of Appeal

Civil practice and procedure | Disposition without trial | Stay or dismissal of action | Grounds | Another proceeding pending | Civil proceeding

Appellant confessed to 1967 murder — Although appellant subsequently retracted confession, he was convicted and sentenced to life imprisonment — Appellant continued to maintain innocence — Following 1991 decision in Stinchcombe, appellant requested full disclosure of Crown file but received only redacted version — In 1998, he received report written by investigating officer, Detective M. confirming appellant's alibi and concluding appellant could not have committed murder — Report did not include fact that detective subsequently discredited alibi — Appellant released on bail and reference to this court ordered — Majority held trial not unfair based on Crown disclosure obligations at that time, but quashed conviction and ordered new trial based on fresh evidence of detective's report — Crown withdrew charge — Appellant's application for order he be re-arraigned so he could plead not guilty and have opportunity to be acquitted dismissed — Motion judge found that although trial unfair, decision to withdraw charge was within prosecutorial discretion — Appellant commenced civil action against Crown and police, claiming damages for alleged negligence and wrongdoing he claimed led to wrongful conviction — Alternatively, he claimed wrongful conviction would have been discovered and quashed sooner — Respondents applied to have action dismissed as abuse of process or stayed on ground it was impossible for action to be reasonably tried — Motion judge dismissed action on ground it was abuse of process as attempt to relitigate issues determined on reference — Motion judge concluded if not abuse of process, it should be stayed — Appeal allowed — Motion judge erred in finding abuse of process — Motion judge failed to analyze nature and purpose of reference and erred in concluding that issue whether alibi discredited was roadblock to civil claim — If defence counsel had known about detective's report, he could have explored issue — Court on reference neither considered nor commented on whether Crown or police owed duty, following Stinchcombe, to disclose full Crown brief — Not abuse of process to litigate that claim — Motion judge erred by failing to consider effect of new criminal trial — Whether alibi discredited could have been considered at new trial — Stakes, purpose and process of reference entirely different from civil action — Mere passage of time, not attributed to appellant, did not justify stay — Prejudice to respondents did not tip balance heavily in favour of stay.
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