Written By: Dale Orlando and Aidan Vining, Summer Student
When an individual commits a wrongful act, they may be subject to criminal prosecution. They may also be subject to a civil action for that same wrong.
This is common with driving offences such as impaired driving and dangerous driving causing death. The driver will be subject to a criminal investigation and possibly a trial. At the same time, the person who is injured by the reckless act of the driver may bring a civil action to recover compensation to assist with medical bills, lost income, and pain and suffering. These two proceedings may overlap in time and deal with the same factual issues.
For that reason, some defendants will argue that continuing with the civil action would unfairly prejudice their position in the criminal proceeding. This may lead the driver to seek a stay of the civil action until the conclusion of the criminal proceedings on the basis that it would be unfair for them to have to partake in the civil action. Under section 106 of the Courts of Justice Act, courts in Ontario have the discretion to stay any proceeding in the court.
Generally, the argument put forward by the defendant is that being subjected to an examination for discovery pursuant to the civil proceedings would cause them to divulge the defence they will be putting forward in the criminal trial, jeopardizing their right to a fair trial.
As several cases demonstrate, Ontario courts are unlikely to accept this argument and will generally dismiss an application for a stay of civil proceedings in favour of criminal proceedings. A stay of civil proceedings will only be granted rarely, and only in extraordinary or exceptional circumstances.
The seminal case on this issue is Stickney v Trusz,  OJ No 2279 (SCJ). In Stickney, the defendant applied for an order staying the proceedings in the civil action until the criminal charges against the defendant were concluded. The defendant argued her right to a fair trial would be jeopardized by the risk of self-incrimination in the civil action. The court disagreed.
Justice Zuber noted that there are already several existing rules in Ontario that protect an accused from self-incrimination. Ultimately, Justice Zuber established the threshold for a stay of proceedings in these circumstances: “the discretion to stay an action should be exercised in extraordinary or exceptional cases.” Justice Zuber dismissed the application, noting that there were no exceptional circumstances in the case – the defendant was merely subject to criminal and civil proceedings at the same time. If a stay was granted in that case, a stay would have to be granted in every case with concurrent proceedings.
In Gillis v Eagleson,  OJ No 1160 (OCJ), a stay was partially granted pending the final determination of criminal proceedings in the United States against the defendant on the same facts. Justice Lang reiterated that the test for a stay in these cases is whether the defendant can establish extraordinary and exceptional circumstances. The exceptional circumstances in this case were that the defendant would not be subject to the same evidentiary and constitutional protections in the United States proceedings that would normally be available in Canada.
In Ajax (Town) v Ajax Auto Recyclers Ltd., 2018 ONSC 2385, Justice Salmers reaffirmed the threshold from Stickney that a stay in these cases is an extraordinary and exceptional remedy. There is a presumption against a stay, and the fact that there are concurrent proceedings in progress is not a sufficient reason for a stay. Justice Salmers stated that the defendants must be able to “show some specific or peculiar way in which they will be prejudiced” in the criminal prosecution.
It is clear from these cases that Ontario courts are averse to the staying of civil proceedings in favour of criminal proceedings. A stay will only be granted in extraordinary or exceptional circumstances – a high threshold. The burden of demonstrating that the court’s discretion should be exercised rests on the applicant. In order to prove that a stay should be granted, the applicant must demonstrate that his or her case is exceptional. A stay of proceedings cannot be used as a tool to unnecessarily drag out civil proceedings. Injured plaintiffs are entitled to a timely and just result.