The Use of Experts in Construction Litigation
In a slight departure from the usual technical legal content posted on this blog by my fellow writers, Nicole Abergil and Dan Fridmar, this article is geared more towards general public understanding of the legal system. The key takeaway for readers is, despite the phrasing in the title of this article, not so much that there is a difference between civil and criminal law. Rather, there have been layers upon layers of nuance developed through centuries of historical legal developments eroding the fine line separating civil and criminal law and procedure. I’m reminded of the apt words of Douglas Powers during his infamous 1997 colloquy: “We’re not so different you and I”.
With that being said, the fundamental difference between the two areas of law is simple to understand. For civil law, what’s at issue is a disagreement about a private legal matter between or among those persons (whether they be private individuals or corporations). Criminal law, on the other hand, involves an offence against society as a whole, for which there are laws on the books clearly prohibiting certain kinds of conduct.
Another way to understand that distinction lies in the seriousness of the conduct. It’s certainly possible to claim damages against another person (whether it be a private individual or a corporation) through civil action, but it may not necessarily warrant criminal sanction. Consider the contrasting examples of a renovator breaking a window while moving equipment and denying responsibility as opposed to a situation where a separated husband breaks a window to gain entry into his wife’s home. The latter example, however, belies just how seriously the police and Crown take domestic-related allegations even where the property in question is as mundane as damaging an easily-replaceable television screen.
A Decidedly Civil Issue Becoming a Criminal Issue, and Vice Versa?
As I alluded to, it’s important that you should also bear in mind that these areas of law do not exist in a vacuum, such that allegations in a civil law case may also raise issues relevant to criminal proceedings. In other words, the circumstances of one particular incident may present you, the aggrieved party, with different legal recourse through civil and/or criminal proceedings. This is not an uncommon situation in circumstances involving allegations of fraud. In fact, it’s quite common for civil lawyers in Vaughan to have their clients to reach out and pursue remedies through civil law while at the same time taking action through criminal law with the assistance of the police. So when does a civil problem cross into the realm of criminal law, and vice versa?
A neat illustration of that question can be found in the well-publicized demise of the fraudulent scheme perpetrated by one Ms. Suzanne Clouthier alongside members of the Malette family using several corporations as vehicles to carry out their dishonest activity.1 Caisse Populaire d’Iroquois Falls, as some may be familiar with, was the unfortunate victim of such a fraud. The individuals, specifically kindly old Mr. Nicol Malette and Ms. Clouthier, were convicted of criminal fraud and appropriately sentenced. That was not the end of the story, however. Caisse Populaire was eventually succeeded by Deposit Insurance Corporation of Canada following its untimely demise, which then brought an action for the tort of civil fraud against Ms. Clouthier and the Malette family.
Despite the clear judgment being rendered by the criminal court, Mr. Malette in failing to heed Mark Twain’s now-immortal words, “There are three kinds of lies: lies, damned lies, and statistics”, raised a somewhat technical argument on the summary judgment motion based on the impossibility to quantify precisely how much of the fraud he was personally responsible for and, as a result, a full-blown trial was necessary to re-litigate the numbers and essentially all the issues that were already addressed by the criminal court.2 The Superior Court of Justice wasn’t buying this most bogus attempt and, as the Court explained, the findings that were made by the criminal court “mirror the essential elements of the civil tort of fraud”. To re-litigate what effectively amounted to the exact same issue would have been an abuse of process.3 Summary judgment was therefore appropriately granted in favour of the plaintiff largely because of the fraud findings by the criminal court.
The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of Sutherland Law's Lawyers by email or telephone.
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1 Deposit Insurance Corp. of Ontario v. Malette, 2014 ONSC 2845.
2 Supra 1, at para. 25.
3 Supra 1, at paras. 23 and 24.