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Only one kick at the can: Arconti v. Fenton

4 minute read

The Ontario Court of Appeal confirmed, in a recent decision, that a plaintiff will not be permitted to sue a lawyer alleging that the lawyer’s negligence resulted in a wrongful criminal conviction when there has been an unsuccessful appeal from the conviction based on ineffective assistance of counsel.

In Arconti v. Fenton, 2020 ONCA 489, the appellants were represented by the respondents in a proceeding before the Ontario Securities Commission (“OSC”). In December 2013, after a twelve-day hearing, the OSC found that the appellants had committed securities fraud and imposed a number of sanctions, including lifetime trading bans and other capital markets restrictions, that the appellants disgorge certain amounts, and that they pay financial penalties and costs.

The appellants appealed the OSC decision to the Divisional Court. One of the grounds of appeal was ineffective representation by counsel. The respondents were granted intervener status and participated in the appeal. The Divisional Court dismissed the appeal. On the issue of ineffective assistance of counsel, the Divisional Court held that the appellants had not established that there was any miscarriage of justice in the proceeding before the OSC.

Before the decision was released in the Divisional Court appeal, the appellants commenced civil actions against the respondents, alleging that they were negligent in their representation of the appellants in the OSC proceeding. After the Divisional Court appeal was dismissed, the respondents brought a motion under Rule 21 to dismiss most of the appellants claims, based on the preclusive doctrines of res judicata, issue estoppel and abuse of process. The respondents also moved under Rule 20 for summary judgment in respect of one claim, which alleged that the respondents’ negligence caused the appellants to lose an opportunity to negotiate a settlement of the OSC proceeding.

The motion judge dismissed all of the claims, with the exception of the claim relating to the alleged failure to negotiate a settlement of the OSC matter. As noted, the respondents had moved under Rule 20 in respect of that claim. The evidence with respect to that claim was conflicting and included expert reports. The motion judge directed a mini-trial (the scope of which would be the subject of further discussion) to determine if summary judgment should be granted in respect of that claim.

On appeal, the appellants argued, with respect to the claims that were dismissed pursuant to Rule 21, that the motion judge erred in applying the applicable test, issued reasons that were vague and created confusion as to what claims could or could not be pursued, and failed to appreciate that he had discretion to not apply the preclusive doctrines to these claims. With respect to the order of a mini-trial, the appellants argued that a mini-trial was an insufficient procedure to determine the claim relating to the alleged failure to negotiate a settlement of the OSC matter.

The Court of Appeal dismissed the appeal. The court first noted that the motion judge correctly divided the claims into two categories: (a) claims that depended on the appellants establishing that, but for the respondents’ negligence, they would have been acquitted, and (b) the claim that they were deprived of an opportunity to settle the OSC proceeding.

With respect to the first category of claims, the court held that the motion judge correctly followed its decision in Harris v. Levine, 2014 ONCA 608, where the court held that a negligence claim that depends on a plaintiff showing that he or she would have been acquitted of a criminal charge but for the lawyer’s negligence is an abuse of process, because it amounts to a collateral attack on the criminal adjudicative process.
The court also rejected the appeal of the motion judge’s order that there be a mini-trial to determine whether summary judgment should be granted with respect to the claim that the appellants were deprived of an opportunity to settle the OSC proceeding. The court noted that the scope and terms of the mini-trial still had not been determined. The order was merely procedural and did not finally determine any of the appellants’ rights.

This decision confirms prior jurisprudence that a plaintiff will not be permitted to sue a lawyer for negligence in connection with a criminal conviction where ineffective assistance of counsel was raised in an unsuccessful appeal of that conviction. In those circumstances, the civil claim will be viewed as a collateral attack on the criminal conviction and may be dismissed as an abuse of process.

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