Written By: Savannah Snyder, Associate, and Sara Ferro, Summer Student
8 Minute Read
Introduction
An at-fault defendant in a personal injury action may also be charged under the Criminal Code of Canada or the Highway Traffic Act (“HTA”). While these proceedings remain separate from the civil action, also known as the lawsuit, there can be significant evidentiary overlap. The admissibility of evidence from criminal and HTA proceedings in a civil action is governed primarily by Ontario’s Evidence Act, R.S.O. 1990, c. E23. This blog will explore the types of evidence that can serve a dual purpose in the civil action, and how evidence from criminal and HTA proceedings can be used to strengthen the related civil claim.
Different Types of Evidence
Various evidence from criminal and HTA proceedings could be relevant to a personal injury claim. Examples include:
- Guilty pleas
- Agreed statements of fact
- Sentencing transcripts
- Trial transcripts
- Physical exhibits
Section 5(2) of the Evidence Act
Ontario’s Evidence Act governs how this evidence can be used in subsequent legal proceedings. Section 5(2) of the Evidence Act states that a certified transcript of recorded evidence or proceedings is admissible in evidence so long as it has been recorded in accordance with subsection (1) and is in accordance with the rules of the court. This is true regardless of whether the witness or any parties to the action or proceeding have approved the method used to record the proceedings and whether or not they have read or signed the transcript.
Conviction of an Offence
Section 22.1(1) of the Evidence Act states that proof that a person has been convicted or discharged of a crime is proof that the crime was committed by the person. However, this section creates a rebuttal presumption of law. The prior conviction is only “proof” that a person committed the crime when there is no contradictory evidence presented. [1]
While section 22.1(1) can strongly support liability in a personal injury case, it is not conclusive and the court may consider how the conviction came to be when weighing the evidence. For example, an accused who was found guilty after a full trial with credible evidence and cross-examinations may attract greater weight than an accused who pled guilty.
Agreed Statement of Facts
An agreed statement of facts may also be useful evidence in a personal injury claim. In R v Baksh, 2008 ONCA 116, the court affirmed that an agreed statement of facts constitutes an admission that can be used as evidence in subsequent legal proceedings, notwithstanding any express or implied limitations. [2] Although these admissions would typically present hearsay concerns, courts have often recognized that admissions of fact fall within the exceptions to hearsay and are therefore presumptively admissible. [3]
That said, the evidentiary value of an agreed statement of facts can vary. Courts have permitted declarants to explain or qualify their admissions, meaning the admission of an agreed statement of facts does not foreclose the declarant from providing an explanation that could undermine the plaintiff’s case. [4] Despite this, an agreed statement of facts will often contain conceded facts that are directly helpful to liability in a personal injury claim, such as the speed the defendant was travelling or intoxication levels in the case of a motor vehicle collision.
Weighing the Evidence
When evidence from a prior criminal proceeding is admitted, the court must assess the weight to be given to it. In doing so, the judge will consider factors including: the similarity of the issues to be decided, the identity of the parties, the nature of the prior proceedings, whether the opposing party had a meaningful opportunity to respond to the evidence, and whether the prior proceedings were criminal or civil in nature. The distinction between criminal and civil proceedings is important given the different burdens of proof. [5] A criminal conviction represents a finding of guilt beyond a reasonable doubt. This would likely attract greater weight in a subsequent legal proceeding than a prior finding of liability made on a balance of probabilities.
Different types of evidence will carry different levels of weight. Evidence obtained from sentencing transcripts and trial transcripts may be influential and persuasive, but they are not binding on civil lawsuits. In contrast, a criminal conviction is treated as proof that the individual committed the offence and as discussed, the fact that it was proven beyond a reasonable doubt affords it significant weight in civil proceedings. Weight should be considered when relying on transcripts versus an actual conviction, as it could significantly impact the outcome of their case.
The Doctrine of Abuse of Process
The doctrine of abuse of process operates to limit the rebuttal presumption in civil proceedings. In Toronto (City) v. C.U.P.E., 2003 SCC 63, the Court emphasized that re-litigation should be avoided unless necessary to avoid hindering the integrity of the justice system or where fairness requires it. This is noteworthy for personal injury claims, as it reflects the court’s willingness to defer to the findings of the criminal justice system when considering a prior conviction as proof of liability in the civil context.
Importantly, the doctrine prevents a convicted person from re-litigating the essential acts of the offence and the convicted person cannot adduce any evidence contrary to the essential facts of the conviction. [6] However, when an accused pleads guilty to an offence, the court may accept the plea only when the court is satisfied that the accused made the plea voluntarily and that the accused understands that the plea is an admission of the essential elements of the offence. [7]
Ancillary facts, however, may be re-litigated in civil proceedings. [8] Ancillary facts are facts that do not include the essential or key facts and may include information pertaining to background information, credibility of witnesses, surrounding circumstances, and narrative context. The doctrine is discretionary, and its application will depend on whether the interests of the justice system or the parties require it in the circumstances.
In practice, the doctrine would prohibit a defendant convicted of impaired driving from re-litigating the essential facts from the criminal proceeding, such as the fact of their impairment. However, where new evidence emerges that could call that finding into question, fairness may require the court to permit re-litigation. Limitations such as this one exemplify the balancing act that the courts undertake when determining how evidence is to be interpreted and used in a subsequent legal proceeding.
Conclusion
Personal injury litigation often relies on criminal and HTA proceedings as a source of evidentiary value. The Evidence Act and the doctrine of abuse of process provides meaningful tools to introduce evidence from prior proceedings to determine liability. However, admissibility is not without its limits. As discussed, the weight attributed to evidence from prior proceedings will depend on a variety of factors such as the nature of the prior proceedings or whether there has been an opportunity to explain the evidence. In practice, this involves obtaining the unredacted police records from the investigating police service by way of a Rule 30.10 motion under the Rules of Civil Procedure, as well as requesting the transcripts and entered exhibits from any guilty plea or trial.
In summary, the evidentiary record from criminal and HTA proceedings can meaningfully assist a civil claim when the correct evidence is obtained and used in an impactful way.
SOURCES
[1] Toronto (City of) v Canadian Union of Public Employees, 2001 CanLII 24114 (ON CA) at para 44.
[2] Attorney General (Ontario) v 855 Darby Road, Welland et al, 2017 ONSC 4953 at para 54.
[3] R v Lo, 2020 ONCA 622 at para 81.
[4] Attorney General (Ontario) v 855 Darby Road, Welland et al, 2017 ONSC 4953 at para 58.
[5] Plate v Atlas Copco Canada Inc, 2019 ONCA 196 at para 62.
[6] Lambert v Lambert, 2022 ONSC 6432 at para 10, 11.
[7] Ibid at para 17.
[8] T.H. v M.L., 2025 ONSC 6824 at para 72.
