Phillion v. Attorney General of Canada et al

2014 ONCA 567; Lerners represented the respondent in this unusual case. The appellant Phillion was convicted of murder in 1972. In 2006, following a request by Phillion, the Minister of Justice ordered the Court of Appeal to hear a Reference in order to determine whether miscarriage of justice had occurred as a result of non-disclosure of evidence by the Crown. The majority of the Court, in 2009, concluded that it was appropriate to quash the conviction but not appropriate to enter an acquittal, and ordered a new trial. The Crown did not proceed with the new trial and dropped the charges, as it was now over 40 years since the murder occurred. Following this, as well as a failed Charter application, the appellant brought an action against the respondents, alleging numerous intentional torts, negligence, and Charter breaches. On the respondents’ motion, this action was stayed as an abuse of process, as it sought to re-litigate the Reference findings. Phillion successfully appealed the stay order. The Court of Appeal found that the trial judge erred in dismissing the action and ordering a stay, based on – among other things – the trial judge’s failure to analyze the nature of the Reference in comparison with the civil claim issues and the effect of the ordered remedy of a new criminal trial.