While a finding of guilt in a criminal proceeding doesn’t guarantee a win for the plaintiff’s counsel in a civil case, it does make things easier as the burden of proof has already been met, Toronto personal injury lawyer Darryl Singer tells Recovery magazine.
“If you’re already convicted it’s unlikely that you’d be able to successfully argue that you weren’t liable and your lawyer’s strategy at that point in the civil case would be to shift to limiting the amount by saying, ‘Yes, he committed an assault and we admit the liability but we don’t think the damages are as high as the plaintiff says,’” explains Singer, principal of Singer Barristers Professional Corporation.
Singer, who typically acts for plaintiffs who are bringing a suit against a convicted drunk driver or for a person who has been assaulted and the perpetrator has been convicted, explains that a conviction under the Criminal Code doesn’t automatically mean that he will win civilly.
He adds, however, that, “it certainly helps me get over the liability hurdle.
“The key is because the test to convict in criminal court is higher than the test to prove liability in the civil court.”
In a criminal matter, he says, the court has to be satisfied beyond a reasonable doubt that the person has committed an offence. In civil court, it only has to be satisfied that on the balance of probabilities the defendant is responsible.
Singer says in the article that it doesn’t bother him if someone he’s suing in civil court is found not guilty at a criminal trial — the mere fact there is a charge is helpful.
“Obviously if there’s a conviction then proving liability is much easier in a civil case because I’ve already got a precedent.”
There are a number of reasons why a person may escape conviction on a criminal charge, he explains, including the Crown deciding to drop the charge if they feel the case is not worth pursuing, or allowing an accused who is a first-time offender to enter into a peace bond.
If a defendant is found not guilty in criminal court, this means the defendant’s lawyer can argue in civil court that the person is not responsible for an act, says Singer, “however it doesn’t mean that we’re down and out on the liability.”