Which goes first: Can you stay a civil proceeding pending criminal proceedings?

The general rule in Ontario is that courts will not stay civil proceedings because of criminal proceedings arising from the same facts. For a stay, you must show exceptional circumstances, typically in the form of prejudice to the party seeking the stay, or to the administration of justice generally, which outweighs the civil plaintiff’s fundamental right to timely access to the courts. This is a “high threshold test”, and it applies whether the stay is sought by the criminal accused or another party to the civil litigation.

The power to stay comes from s. 106 of the Courts of Justice Act, which says: “A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.”

Allowing the civil case to proceed may create a risk of inconsistent findings between the two proceedings isn’t exceptional circumstances. That risk will exist whenever civil and criminal proceedings overlap. Neither is the prospect of a criminal accused being forced to disclose evidence about the issues in the criminal case, since there are generally protections for criminal accused against civil discovery being used to incriminate them. More on that in a later post.

The leading cases in Ontario are Nash v Ontario and Schreiber v Ontario. Nash gives an example of when a stay will be granted. There, one action was stayed, which “was the complete reciprocal of the criminal prosecution and was commenced with the appearance of intent to interfere with the criminal process.” Specifically, it appeared that the plaintiff (the criminal accused) had started a civil action to have pre-trial access to Crown witnesses beyond that available in a preliminary inquiry.

That said, sometimes it makes sense for a plaintiff to voluntarily stay a civil proceeding. Maybe the plaintiff wants to await the outcome of the criminal case. If the defendant is convicted, that will make the civil proceeding much easier and cheaper for the plaintiff. If the defendant is ordered to make restitution as part of a sentence, that may even make the civil proceeding unnecessary.

Certainly, for a defendant, a stay is usually preferable. If you are charged or under investigation criminally, it makes much more sense to deal with one proceeding at a time. Further, despite the protections against self-incrimination that I’ll discuss in a later post, it is wisest to avoid, if possible, being discovered about facts that have given rise to a criminal proceeding, before that proceeding is over. An accused seeking a stay has to show unusual prejudice: for example, are they criminally charged in a jurisdiction without Canadian-style protections against the incriminating use of compelled evidence?

In the next post, we’ll look at when and how evidence from a civil proceeding, especially discovery, can be used in a criminal investigation or prosecution.