The Supreme Court of Canada has just released a significant decision on issue estoppel and police disciplinary proceedings in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (SCC).
In a 4-3 split decision, the Court held that the motion judge and the Court of Appeal for Ontario both erred in dismissing the plaintiff’s civil action for damages following a dismissal of his complaint alleging police misconduct brought under Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). While declining to create a public policy rule precluding applicability of issue estoppel to police disciplinary hearings, the Court preferred a case-by-case discretionary approach to determine whether unfairness arises from the application of issue estoppel.
The majority’s analysis rightly focuses on procedural fairness and the differing purposes underlying police disciplinary proceedings and civil actions:
[50] As the Court of Appeal pointed out, “the legislature did not intend to foreclose [Mr. Penner’s] civil action simply because he filed a complaint under the [PSA]” (para. 42). The PSA features statutory privilege provisions, three of which are noteworthy here. Documents generated during the complaint process are inadmissible in civil proceedings: s. 69(9). Persons who carry out duties in the complaint process cannot be forced to testify in civil proceedings about information obtained in the course of their duties: s. 69(8). Finally, persons engaged in the administration of the complaints process are obligated to keep information obtained during the process confidential, subject to certain exceptions: s. 80. These provisions specifically contemplate parallel proceedings in relation to the same subject matter.
[51] Here, as recognized by the Court of Appeal, the legislation does not intend to foreclose parallel proceedings when a member of the public files a complaint. This would shape the reasonable expectations of the parties and the nature and extent of their participation in the process.
[52] Nothing in the legislative text, therefore, could give rise to a reasonable expectation that the disciplinary hearing would be conclusive of Mr. Penner’s legal rights against the Constables, the Chief of Police or the Police Services Board in his civil action.
The minority dissent (per LeBel, Abella and Rothstein JJ.) seems preoccupied with reopening the debate over the Court’s prior conflicting and confusing “fairness” approach in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, which established a different test for the discretionary application of issue estoppel in the context of administrative tribunals, and stresses finality at all costs relying on the Court’s subsequent jurisprudence in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Dunsmuir and Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160: The minority further notes:
[76]…”The factors dealing with the wording of the statute and the purpose of the legislation are now referred to as the tribunal’s mandate (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471). “
[77] The approach of our colleagues is not only inconsistent with recent developments in the law of judicial review, it also raises potential difficulties in the branch of judicial review which is concerned with procedural fairness. Inasmuch as a process is considered to be unfair, the proper way to attack it would be to challenge it, under the principles of natural justice. In addition, the position of our colleagues may also ignore the ability of legislatures to design administrative processes and define the nature and limits of procedural fairness in the absence of constitutional considerations. Finally, the justice system faces important difficulties in respect of access to civil and criminal justice. To hold that the traditional model of civil and criminal justice is the golden standard against which the fairness of administrative justice is to be measured clearly does not meet the needs of the times from a policy perspective.
The minority’s “cart-before-horse” approach is misguided. A police complaint is focused on fairness and finality for the police officer, not the complainant. There is nothing in police discipline proceedings which concerns itself with compensating a complainant who has been unlawfully charged, detained or arrested, or whose Charter rights have been infringed. It is not, as the minority suggests about “preserving the finality of litigation.” Thus, the minority’s reliance on British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 is equally misplaced; irrespective of whether one is dealing with courts or administrative tribunals. An administrative hearing is not a civil trial and vice versa. Certainly, if the administrative tribunal has exclusive jurisdiction over the subject-matter and the parties, then issue estoppel should operate to limit relitigation and abuse of process. However, where parallel proceedings—administrative and civil—are not restricted by statute and concurrent jurisdiction exists, there is no reason to extend issue estoppel to preclude a plaintiff from pursuing compensatory damages suffered at the hands of the police.
The majority sums it up well:
[69] Issue estoppel is about balancing judicial economy and finality and other considerations of fairness to the parties. It is a flexible doctrine that permits the court to respond to the equities of a particular case. We see no reason to depart from that approach and create a rule of public policy to preclude the application of issue estoppel in the context of public complaints against the police.
[70] Given the legislative scheme and the widely divergent purposes and financial stakes in the two proceedings, the parties could not reasonably have contemplated that the acquittal of the officers at the disciplinary hearing would determine the outcome of Mr. Penner’s civil action. These are important considerations and the Court of Appeal did not take them into account in assessing the weight of other factors, such as Mr. Penner’s status as a party and the procedural protections afforded by the administrative process. Further, the application of issue estoppel had the effect of using the decision of the Chief of Police’s designate to exonerate the Chief in the civil claim.
[71] Applying issue estoppel against Mr. Penner to preclude his civil claim for damages in the circumstances of this case was fundamentally unfair.
Filed under: administrative dismissals, administrative law, estoppel, issue estoppel, parallel proceedings, procedural fairness, Procedural Justice, procedural rights, procedure, Procedure vs. Substance, Supreme Court of Canada Tagged: British Columbia, Canada, Court of Appeal, estoppel, Supreme Court of Canada
