Civil Claims After Criminal Charges. Toronto civil litigation lawyers for people sued, or suing, after a complaint, a charge, an acquittal or a conviction.

Two Standards of Proof

A criminal charge and a civil claim can arise from the same event, and they are separate cases. The criminal case is brought by the Crown, the person who complained is a witness in it, and its purpose is to decide guilt and sentence. The civil claim is brought by the person who says they were harmed, and its purpose is compensation.

The two (2) cases are decided on different standards. A criminal court convicts only where the offence is proved beyond a reasonable doubt. A civil court asks whether the claim is more likely true than not, which lawyers call the balance of probabilities. Evidence that was not enough to convict can therefore be enough to succeed in a civil claim.

A criminal charge does not put the civil claim on hold. The Criminal CodeR.S.C. 1985, c. C-46, s. 11. A civil remedy is not suspended or affected because the act or omission is a criminal offence. provides that a civil remedy is not suspended or affected because the conduct is also an offence. A plaintiff may therefore sue before the charge is tried, after it is tried, or where no charge was ever laid.

How the Criminal Case Ended

What the criminal court did is the starting point for the civil claim. The table sets out the common endings and what each one means in a civil court.

A charge is sometimes withdrawn in exchange for a peace bond or on other terms. The person has not been convicted, and the row for a withdrawn charge applies. The terms can still affect a later claim that the prosecution was malicious, so they are worth reviewing with a civil lawyer before they are agreed to.

When Both Cases Run at Once

A civil claim can be served while the charge is still before the criminal court, or while a conviction is under appeal. The civil court has the power to pause its own case until the criminal case ends, and it uses that power sparingly. A defendant who asks for a pause has to show more than the burden of defending two (2) cases at once.

The harder question is what the defendant says in the civil case while the criminal case is open. A statement of defence is a public document, and a defendant can be examined under oath in the civil action. A witness in a civil case cannot refuse to answer on the ground that the answer may incriminate. The Canada Evidence ActR.S.C. 1985, c. C-5, s. 5. Ontario's Evidence Act, R.S.O. 1990, c. E.23, s. 9(1), also removes the right to refuse to answer, and section 13 of the Charter gives a similar protection. gives a protection in exchange, which is that an answer the witness was compelled to give cannot be used against the witness in a later criminal trial, other than a prosecution for perjury or for giving contradictory evidence.

The order in which things are said and filed therefore has to be planned. We work with the criminal lawyer on the pleading, on the timing of examinations, and on the use that can be made of the evidence in each court.

The Conviction as Proof

A person who has been convicted may be sued by the complainant, sometimes within weeks of the sentence. The claims seen most often are for sexual assault, assault and fraud. Ontario's Evidence ActR.S.O. 1990, c. E.23, s. 22.1. The rule applies whether or not the convicted person is a party to the civil case, and a certificate of conviction is enough to prove it. makes the conviction proof that the person committed the offence, in the absence of evidence to the contrary. The rule takes effect once the time to appeal has passed, or once the appeal has been dismissed or abandoned. It applies to a discharge in the same way, and it applies after a guilty plea, because a plea leads to a conviction or a discharge like any other finding of guilt.

The words "evidence to the contrary" are narrower than they look. In Toronto (City) v. C.U.P.E., Local 792003 SCC 63, [2003] 3 S.C.R. 77, at paras. 51 to 53. the Supreme Court of Canada held that a civil court will not allow a conviction to be tried a second time, because doing so is an abuse of the court's process. The Court identified the situations in which the result can be reopened. They are (i) where the first proceeding was tainted by fraud or dishonesty; (ii) where fresh evidence that was not available before conclusively impeaches the result; and (iii) where fairness requires that the result not bind in the new setting, for example because the stakes in the first case were too small to call for a full defence.

The Court of Appeal applied the same reasoning in F. (K.) v. White(2001), 53 O.R. (3d) 391 (C.A.), at paras. 50 to 56., where a defendant convicted by a jury answered the civil claim with the denial the jury had rejected. Judgment on liability was granted without a trial. The Court left room for a defendant who can show that the civil issue differs from the one the criminal court decided, who has new evidence, or whose charge was too minor to have been worth a full defence.

What Remains Open

A conviction proves the offence and nothing more. The plaintiff still has to prove the rest of the claim, and the defence is directed to that part.

1. The harm and its cause. The criminal court decides whether the offence was committed. It does not assess the plaintiff's losses. The plaintiff must prove the injury, the link between the offence and the injury, and each head of damages with evidence.
2. Facts the criminal court did not have to decide. A sentencing judge may make findings that go beyond the elements of the offence. In Plate v. Atlas Copco Canada Inc.2019 ONCA 196, at paras. 70, 71, 77, 87 and 96. the Court of Appeal set aside a summary judgment of about $20 million because it rested on a finding, made at sentencing, that the defendant had no realistic opportunity to contest. Findings that were properly in issue at the sentencing stand, and they can support summary judgment in a proper case.
3. The difference between the offence and the civil claim. A civil claim is framed in its own terms, such as battery, deceit or breach of fiduciary duty, and its elements are not always those of the offence. Where they differ, the conviction answers only part of the question.
4. Other people's share. The claim may name other defendants, or the loss may have more than one cause. The division of responsibility among them is decided in the civil court.
5. What has already been ordered. A restitution order made at sentencing does not replace the civil claim. The Criminal CodeR.S.C. 1985, c. C-46, s. 741.2; Plate, at paras. 105 to 110. preserves the civil remedy, and the civil court assesses the loss on its own evidence.

Summary Judgment

A plaintiff who holds a conviction will usually ask for judgment without a trial. The motion is decided on affidavits and transcripts, and the court asks whether there is a genuine issue that requires a trial. On liability there often is none. On the amount there usually is one, and a defendant who answers the motion with evidence about the harm, the losses and the findings that were never tested can narrow the judgment or send those issues to trial. The firm's note on the genuine issue requirement explains the test.

Damages, Punitive Damages & Costs

Ontario's Victims' Bill of Rights, 1995S.O. 1995, c. 6, ss. 3 and 4, as amended in 2024. changes the ordinary rules where a victim sues a person convicted of the crime. For the crimes prescribed by regulation, the convicted person is liable for the victim's emotional distress and for bodily harm that results from it. For several groups of victims the distress is presumed, and they include victims of sexual assault, victims of an assault by a spouse or a former spouse, and victims under eighteen (18) who were assaulted by a person in a position of trust or authority.

The same Act tells the judge how to treat the sentence. The sentence is not considered when compensatory damages are fixed, and it must be considered before punitive damages are ordered. A person who has served a prison sentence can therefore still face a claim for punitive damages, and the sentence is the main answer to it.

Costs follow a rule of their own. Where the victim succeeds, costs are ordered on the solicitor and client scale, which is the higher scale, unless the judge finds that it would not be in the interests of justice. A victim is ordered to post security for costs only where the interests of justice require it. Both rules raise the cost of losing, and they are a reason to weigh an early offer with care.

Insurance, Bankruptcy & Enforcement

Liability insurance seldom answers these claims. Most policies exclude intentional and criminal acts, and an insurer may refuse both to defend the action and to pay a judgment. The answer depends on the wording of the policy and on how the claim is pleaded, so the policy is read at the start and the insurer is given notice in any event.

Bankruptcy does not release most of these judgments. Under the Bankruptcy and Insolvency ActR.S.C. 1985, c. B-3, s. 178(1)(a), (a.1), (d) and (e)., a discharge leaves in place a restitution order, an award of damages for bodily harm that was intentionally inflicted or for sexual assault, and a debt that arose from fraud while acting as a fiduciary or from obtaining property by false pretences.

A civil judgment is enforced like any other, through writs, garnishment and examinations about the debtor's means. A restitution order that goes unpaid can be filed in the civil court and enforced in the same way under the Criminal CodeR.S.C. 1985, c. C-46, s. 741(1).. The firm's guide to enforcing judgments in Ontario describes the process from the creditor's side.

Sued After an Acquittal

An acquittal means that the Crown did not prove the offence beyond a reasonable doubt. It is not a declaration that the event did not happen, and the complainant remains free to sue. In Polgrain Estate v. Toronto East General Hospital2008 ONCA 427, at paras. 28, 29, 32 and 35. the Court of Appeal allowed a civil action to go ahead after an acquittal, and it held that the criminal judge's reasons for acquitting are not findings that bind the civil court.

The civil case is then a full contest on the lower standard. The plaintiff must prove the allegation on the balance of probabilities, and the defendant is entitled to test it with documents, with examinations under oath and with cross-examination at trial. The record of the criminal trial is available to both sides, and evidence a witness gave there can be put to the same witness in the civil case.

Charges Withdrawn, Stayed or Never Laid

Where a charge is withdrawn or stayed, or the police decline to lay one, no court has decided anything. The complainant may still sue, and the limitation rules described below mean that a claim based on a sexual assault can be started many years later.

For the person accused, this is often the hardest position to be in. There is no verdict to point to, the allegation may have been repeated to an employer or a regulator, and the police file still exists. The practical steps are to keep every document from the criminal matter, to find out what the police records show, and to take advice before answering the complainant or anyone who acts for the complainant.

Claims Against the Complainant

A person who was falsely accused can sue the complainant in defamation or for malicious prosecution. Each claim has a hurdle that has to be assessed before the claim is issued.

Defamation. A report to the police is made on an occasion of qualified privilege. The Court of Appeal described complaints to the police as a classic example in Cusson v. Quan2007 ONCA 771, at paras. 38 to 40. The Supreme Court of Canada later decided the appeal on the defence of responsible communication (2009 SCC 62).. The privilege protects a complainant who was mistaken. It is lost where the complaint was made maliciously, which means out of spite or for an ulterior purpose, or with knowledge that it was false or with reckless indifference to its truth. The person suing has to prove the malice. In Marcellin v. London (Police Services Board)2024 ONCA 468, at paras. 42, 62 to 71 and 124., the Court of Appeal allowed a defamation claim over a complaint to the police to continue, because the question of malice had not been properly considered.

Statements made outside the report are treated differently. An accusation repeated to an employer, to friends or on social media may have no privilege at all, while evidence given in court is protected absolutely. The time to sue is short. A defamation claim must generally be started within two (2) years of the day the person learned of the statement, and the firm's note on false police reports and the limitation period explains why the period does not wait for the criminal case to end. The complainant may also answer the claim with an anti-SLAPP motion, which can end it early and with costs. The firm's defamation practice handles these claims.

Malicious prosecution. The plaintiff must prove four (4) things; namely, that the defendant started the prosecution, that it ended in the plaintiff's favour, that there were no reasonable and probable grounds for it, and that the defendant acted out of malice or for a purpose other than carrying the law into effect.Nelles v. Ontario, [1989] 2 S.C.R. 170, as set out in D'Addario v. Smith, 2018 ONCA 163, at para. 23. Against a complainant, the first element is the obstacle. The police officer who lays the charge is ordinarily treated as the person who started the prosecution. In D'Addario v. Smith2018 ONCA 163, at paras. 24 to 29., the Court of Appeal held that a false statement to the police is not enough where the officer investigated and decided independently to lay the charge. The firm's article on malicious prosecution and abuse of process covers the tort in more detail.

Claims Against the Police & the Crown

A person who was investigated, arrested or prosecuted without proper grounds may have a claim against the police service or the Crown. The claims the law recognizes include negligent investigation, wrongful arrest and false imprisonment, malicious prosecution, and damages under the Charter.

Each claim has a demanding test. The police are held to the standard of a reasonable officer in the circumstances at the time, which the Supreme Court of Canada set in Hill v. Hamilton-Wentworth Regional Police Services Board2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 3 and 73., and an investigation is not negligent because it ended in an acquittal. A Crown attorney is liable for malicious prosecution only where the prosecution was pursued for an improper purpose, as the Court confirmed in Miazga v. Kvello Estate2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 3, 56 and 89.. Damages under the Charter are governed by Vancouver (City) v. Ward2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 4, 25 and 31., and they are awarded where they serve to compensate, to vindicate the right or to deter further breaches.

A claim against the provincial Crown has rules of its own. Under the Crown Liability and Proceedings Act, 2019S.O. 2019, c. 7, Sched. 17, ss. 17 and 18., the Crown must be given notice of the claim at least sixty (60) days before the action is started, and an action started without that notice is a nullity. A claim that alleges misfeasance in public office or bad faith by an officer or employee of the Crown cannot proceed without the court's leave, and it is stayed until leave is given. A municipal police service is sued through its police service board.

The limitation period for these claims needs early attention. In Winmill v. Woodstock (Police Services Board)2017 ONCA 962, at paras. 22, 23, 31 and 33., the Court of Appeal accepted that a claim against the police could reasonably wait for the outcome of the criminal charge that arose from the same events. In Sosnowski v. MacEwen Petroleum Inc.2019 ONCA 1005, at paras. 16, 19, 20, 28 and 29., two (2) years later, the Court held that a plaintiff may not wait for the criminal case to end to find out how strong the claim is. The safe course is to count the two (2) years from the events and to take advice before relying on a later date.

Police Records & Record Checks

A charge that did not end in a conviction can remain in police records, and people often learn of it when an employer or a volunteer organization asks for a record check. Ontario's Police Record Checks Reform Act, 2015S.O. 2015, c. 30, ss. 8 and 10 and the Schedule. limits what may be disclosed. There are three (3) kinds of check. A charge that was dismissed, withdrawn or stayed, or that ended in an acquittal, may be disclosed only in a vulnerable sector check, and only where strict criteria are met. The criteria include that the alleged victim was a child or a vulnerable person and that the records show a pattern indicating a risk of harm.

A person whose non-conviction information is to be disclosed can ask for reconsideration, and the provider of the check must reconsider within thirty (30) days of the request. An absolute discharge stops being disclosed after one (1) year and a conditional discharge after three (3) years. A person who was not convicted can also ask the police service to destroy the fingerprints and photographs taken on arrest, and each service has its own procedure for the request.

Limitation Periods

Most civil claims in Ontario must be started within two (2) years of the day the claim was discovered. The claims that most often follow a criminal case are an exception. Under the Limitations Act, 2002S.O. 2002, c. 24, Sched. B, s. 16(1)(h), (h.1) and (h.2) and s. 16(1.1) to (1.3)., there is no limitation period for a claim based on a sexual assault. The same is true of a claim based on other sexual misconduct, or on an assault, where the person was a minor at the time or stood in one of the relationships the Act describes, such as dependency or an intimate relationship.

These rules apply whenever the event took place, so a person can be sued decades later. The exception is a claim that was already dismissed or settled. The rules also reach claims against other people that arise from the same event, such as a claim that an employer or an institution was negligent.

The person cleared has much less time. A defamation claim against a complainant runs for two (2) years from knowledge of the statement, and shorter notice periods apply where the statement appeared in a newspaper or a broadcast. A claim against the police or the Crown is subject to the two-year period and, for the Crown, to the notice requirement described above. The firm's limitation period calculator and its guide to limitation periods in Ontario set out the general rules.

The Crown Brief & Police Records

The prosecution's file, usually called the Crown brief, contains evidence that both sides of the civil case need. It includes witness statements, police notes, recordings and forensic reports. A person who received it as disclosure in the criminal case holds it for that purpose, and it cannot be produced in the civil action as an ordinary document.

The Court of Appeal set out the procedure in D.P. v. Wagg(2004), 71 O.R. (3d) 229 (C.A.), at paras. 2, 12 and 14.. The party who has the brief discloses that it exists, and the Attorney General and the police are given the opportunity to object before any of it is produced. Production then takes place by consent or under a court order that deals with privacy, privilege and any publication ban. Records the police hold about a person who is not a party are obtained by a motion on notice to the police.

Appeals

An appeal from the conviction changes the civil case. The Evidence Act rule applies only once the appeal is over, so a conviction under appeal is not yet proof of the offence in the civil court, and a successful appeal can remove the foundation of the plaintiff's case on liability. The timing of a summary judgment motion and of any settlement is planned around the appeal. The firm takes those appeals as well, and its page on criminal appeals explains how they work.

The civil judgment can be appealed as well. An appeal from a final order of a judge of the Superior Court of Justice goes to the Court of Appeal for Ontario or to the Divisional Court, depending on the amount, and the time to appeal is short. The firm's appellate practice handles civil appeals, and its appeals deadline calculator computes the dates.