SUPREME
COURT OF CANADA
Between:
Wayne
Penner
Appellant
and
Regional
Municipality of Niagara Regional Police Services Board, Gary E. Nicholls,
Nathan Parker, Paul Koscinski and Roy Federkow
Respondents
- and -
Attorney
General of Ontario, Urban Alliance on Race Relations, Criminal Lawyers’
Association (Ontario), British Columbia Civil Liberties Association, Canadian
Police Association and Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell
and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 72)
Dissenting
Reasons:
(paras. 73 to 127)
|
Cromwell and Karakatsanis JJ. (McLachlin
C.J. and Fish J. concurring)
LeBel and Abella JJ. (Rothstein J.
concurring)
|
Penner
v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2
S.C.R. 125
Wayne Penner Appellant
v.
Regional Municipality of Niagara Regional
Police
Services Board, Gary E. Nicholls,
Nathan Parker,
Paul
Koscinski and Roy Federkow Respondents
and
Attorney General of Ontario, Urban
Alliance on
Race Relations, Criminal Lawyers’
Association
(Ontario), British Columbia Civil
Liberties Association,
Canadian Police Association and Canadian
Civil
Liberties
Association Interveners
Indexed as: Penner v.
Niagara (Regional Police Services Board)
2013 SCC 19
File No.: 33959.
2012: January 11; 2013: April 5.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell and Karakatsanis JJ.
on appeal from the court of appeal for ontario
Civil
procedure — Issue estoppel — Administrative law — Police disciplinary
proceedings — Complaint alleging police misconduct brought under Police
Services Act, R.S.O. 1990, c. P.15 (“PSA”) — Civil
action for damages arising from same incident also commenced — PSA hearing
officer finding no misconduct and dismissing complaint — Motion judge and Court
of Appeal exercising discretion to apply issue estoppel to bar civil claims on
basis of hearing officer’s decision — Whether public policy rule precluding
applicability of issue estoppel to police disciplinary hearings should be
created — Whether unfairness arises from application of issue estoppel in this
case.
P
was arrested for disruptive behaviour in an Ontario courtroom. He filed a
complaint against two police officers under the Police Services Act (“PSA”),
alleging unlawful arrest and unnecessary use of force. He also started a civil
action claiming damages arising out of the same incident. The hearing officer
appointed by the Chief of Police under the PSA found the police officers
not guilty of misconduct and dismissed the complaint. That decision was
reversed on appeal by the Ontario Civilian Commission on Police Services on the
basis that the arrest was unlawful. On further appeal, the Ontario Divisional
Court concluded that the officers had legal authority to make the arrest and
restored the hearing officer’s decision. The police respondents then successfully
moved in the Superior Court of Justice to have many of the claims in the civil
action struck on the basis of issue estoppel. While finding several factors
weighed against the application of issue estoppel, the Ontario Court of Appeal
concluded that applying the doctrine would not work an injustice in this case
and dismissed P’s appeal.
Held (LeBel,
Abella and Rothstein JJ. dissenting): The appeal should
be allowed.
Per
McLachlin C.J. and Fish, Cromwell and Karakatsanis JJ.: It is
neither necessary nor desirable to create a rule of public policy excluding
police disciplinary hearings from the application of issue estoppel. The
doctrine of issue estoppel allows for the exercise of discretion to ensure that
no injustice results; it calls for a case‑by‑case review of the
circumstances to determine whether its application would be unfair or unjust even
where, as here, the preconditions for its application have been met. There is no reason to depart from that approach.
However, in the circumstances of this case, it was unfair to P to apply issue
estoppel to bar his civil action on the basis of the hearing officer’s
decision. The Court of Appeal erred in its analysis of
the significant differences between the purpose and scope of the two
proceedings, and failed to consider the reasonable expectations of the parties
about the impact of the proceedings on their broader legal rights.
The legal
framework governing the exercise of the discretion not to apply issue estoppel
is set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. This framework has not been overtaken by this
Court’s subsequent jurisprudence. While finality is important both to the parties and to the judicial
system, unfairness in applying issue estoppel may nonetheless arise. First,
the prior proceedings may have been unfair. Second, even where the prior
proceedings were conducted fairly, it may be unfair to use the results of that
process to preclude the subsequent claim, for example, where there is a
significant difference between the purposes, processes or stakes involved in
the two proceedings. The text and purpose of the legislative scheme shape the
parties’ reasonable expectations in relation to the scope and effect of the
administrative proceedings. They guide how and to what extent the parties
participate in the process. Where the legislative scheme contemplates multiple
proceedings and the purposes of those proceedings are widely divergent, the
application of the doctrine might not only upset the parties’ legitimate and
reasonable expectations but may also undermine the efficacy and policy goals of
the administrative proceedings, by either encouraging more formality and
protraction or discouraging access to the administrative proceedings
altogether. These considerations are also relevant to weighing the procedural
safeguards available to the parties. A decision whether to take advantage of
those procedural protections available in the prior proceeding cannot be
divorced from the party’s reasonable expectations about what is at stake in
those proceedings or the fundamentally different purposes between them. The
connections between the relevant considerations must be viewed as a whole.
In this case, the disciplinary
hearing was itself fair and P participated in a meaningful
way; however, the Court of Appeal failed to fully analyze the fairness of using
the results of that process to preclude P’s civil action. Nothing in the legislative
text gives rise to an expectation that the disciplinary hearing would be
conclusive of P’s legal rights in his civil action: the standards of proof
required, and the purposes of the two proceedings, are significantly different;
and, unlike a civil action, the disciplinary process provides no remedy or
costs for the complainant. Another
important policy consideration arises in this case: the risk of adding to the
complexity and length of administrative proceedings by attaching undue weight
to their results through applying issue estoppel. P
could have participated more fully by hiring counsel, however that would also
have meant that the officers would effectively have been forced to face two
prosecutors rather than one. This would enhance neither the efficacy nor the
fairness to the officers in a disciplinary hearing and potential complainants may not come forward with
public complaints in order to avoid prejudicing their civil actions. These are important considerations and the Court of Appeal did not
take them into account in assessing the weight of other factors, such as P’s
status as a party and the procedural protections afforded by the administrative
process. Finally, 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 and is therefore a serious affront to basic principles of fairness.
Per LeBel, Abella
and Rothstein JJ. (dissenting): The doctrine of issue estoppel seeks to
protect the finality of litigation by precluding the relitigation of issues
that have been conclusively determined in a prior proceeding. The finality of
litigation is a fundamental principle assuring the fairness and efficacy of the
justice system in Canada. The doctrine of issue estoppel seeks to protect the
reasonable expectation of litigants that they can rely on the outcome of a
decision made by an authoritative adjudicator, regardless of whether that
decision was made in the context of a court or an administrative proceeding. In
applying issue estoppel in the context of administrative adjudicative bodies,
differences in the process or procedures used by the administrative tribunal,
including procedures that do not mirror traditional court procedures, should
not be used as an excuse to override the principle of finality. The
purposes and procedures may vary, but the principle of finality should be
maintained.
The
applicable approach to issue estoppel in the context of prior administrative
proceedings was most recently articulated by this Court in 2011 in British
Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52,
[2011] 3 S.C.R. 422. This is the precedent that governs the application of the
doctrine in this case. The key relevant aspect of this precedent is that it
moved away from the approach to issue estoppel taken in Danyluk v. Ainsworth
Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, which had held that a
different and far wider discretion should apply in the context of
administrative tribunals than the “very limited” discretion applied to courts.
The
twin principles which underlie the doctrine of issue estoppel — that there
should be an end to litigation and that the same party shall not be harassed
twice for the same cause — are core principles which focus on achieving fairness
and preventing injustice by preserving the finality of litigation. The
ultimate goal of issue estoppel is to protect the fairness of finality
in decision‑making and the avoidance of the relitigation of issues
already decided by a decision‑maker with the authority to resolve them.
As the Court said in Figliola, this is the case whether we are
dealing with courts or administrative tribunals. An approach that fails to
safeguard the finality of litigation undermines these principles and risks
uniquely transforming issue estoppel in the case of administrative tribunals
into a free‑floating inquiry. This revives the Danyluk approach
that the Court refused to apply in Figliola.
This
Court’s recent affirmation of the principle of finality underlying issue
estoppel in Figliola is also crucial to preserving the principles
underlying our modern approach to administrative law. The Court’s residual
discretion to refuse to apply issue estoppel should not be used to impose a
particular model of adjudication in a manner inconsistent with the principles
of deference that lie at the core of administrative law. Where an adjudicative
tribunal has the authority to make a decision, it would run counter to the
principles of deference to uniquely broaden the court’s discretion in a way
that would, in most cases, permit an unsuccessful party to circumvent judicial
review and turn instead to the courts for a re‑adjudication of the
merits.
Under
the principles set out in Figliola, issue estoppel should apply. The difference
between the standard of proof required to establish misconduct under the PSA
and that required in a civil trial is irrelevant in this case. The hearing
officer made unequivocal findings that there was virtually no evidence to
support P’s claims. That means that there is simply no evidence to support P’s
claims whatever standard of proof is applied. P should not be allowed to
circumvent the clear findings of the hearing officer and put the parties
through a duplicative proceeding which would inevitably yield the same result.
The
disciplinary hearing conducted by the hearing officer was conducted in
accordance with the requirements prescribed by the statute and principles of
procedural fairness. The hearing officer’s decision was made in circumstances
in which P knew the case he had to meet, had a full opportunity to meet it, and
lost. Had he won, the hearing officer’s decision would have been no less
binding and the application of issue estoppel would have assisted him in a
subsequent civil action for damages by relieving him of having to prove
liability.
Preventing
the courts from applying issue estoppel in the context of these disciplinary
proceedings means that decisions would not be final or binding and would be
open to relitigation and potentially inconsistent results. This would
undermine public confidence in the reliability of the complaints process and in
the integrity of the administrative decision‑making process more
broadly.
Nor
does the method used to appoint an adjudicator in this case provide a basis for
exercising the discretion in a way that precludes the application of issue
estoppel. The Chief of Police designated an outside prosecutor and an
independent adjudicator. Similar methods of appointment are quite common in other
parts of the law and are not seen as an obstacle to independent adjudication.
Tenure is not the sole marker and condition of adjudicative independence.
Cases Cited
By Cromwell
and Karakatsanis JJ.
Applied:
Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R.
460; referred to: Parker
v. Niagara Regional Police Service (2008), 232 O.A.C. 317; Elsom v. Elsom, [1989] 1 S.C.R. 1367; Friends of the Oldman River Society v.
Canada (Minister of Transport), [1992] 1 S.C.R. 3; Toronto (City) v.
C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Sharma v. Waterloo Regional
Police Service (2006), 213 O.A.C. 371; Minott v. O’Shanter Development
Co. (1999), 42 O.R. (3d)
321; Schweneke v. Ontario (2000), 47 O.R. (3d)
97; British Columbia
(Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1; Burchill v.
Yukon (Commissioner), 2002 YKCA 4 (CanLII); Porter v. York (Regional
Municipality) Police, [2001] O.J. No. 5970 (QL).
By
LeBel and Abella JJ. (dissenting)
British Columbia (Workers’ Compensation
Board) v. Figliola, 2011
SCC 52, [2011] 3 S.C.R. 422; Danyluk v. Ainsworth
Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Smith v. Alliance Pipeline Ltd., 2011 SCC 7,
[2011] 1 S.C.R. 160; Canada (Canadian Human Rights Commission) v. Canada
(Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2),
[1967] 1 A.C. 853; Parker v. Niagara Regional Police Service
(2008), 232 O.A.C. 317; EnerNorth Industries Inc.,
Re, 2009 ONCA 536, 96 O.R. (3d) 1; Tsaoussis (Litigation Guardian
of) v. Baetz (1998), 41 O.R. (3d) 257, leave to appeal refused, [1999] 1
S.C.R. xiv; Revane v. Homersham, 2006 BCCA 8, 53 B.C.L.R. (4th)
76; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; Boucher
v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Rasanen v. Rosemount
Instruments Ltd. (1994), 17 O.R. (3d) 267; Schweneke v. Ontario (2000), 47 O.R. (3d) 97; Newfoundland and Labrador Nurses’
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
S.C.R. 708; Wong v. Shell Canada Ltd. (1995), 174 A.R. 287, leave to appeal refused, [1996] 3 S.C.R. xiv; Porter v. York (Regional Municipality)
Police, [2001] O.J. No. 5970 (QL).
Statutes and Regulations Cited
O. Reg. 123/98, Part V, Sch., s. 2(1)(g)(i), (ii).
Police Services Act, R.S.O. 1990, c. P.15,
Part II, Part V, ss. 56, 57, 60(4), 64(1), (7) to (10), 68(1),
(5), 69(3), (4), (7), (8), (9), 70(1), 71(1), 76, 80, 83(7), (8), 95.
Provincial Offences Act, R.S.O. 1990,
c. P.33.
Rules of Civil Procedure, R.R.O. 1990,
Reg. 194, r. 21.01.
Statutory Powers Procedure Act, R.S.O.
1990, c. S.22, ss. 10, 10.1.
Authors Cited
Handley, K. R. Spencer Bower and Handley: Res Judicata,
4th ed. London: LexisNexis, 2009.
Lange, Donald J. The Doctrine of Res Judicata in Canada,
3rd ed. Markham, Ont.: LexisNexis Canada, 2010.
LeSage, Patrick J. Report on the Police Complaints System
in Ontario. Toronto: Ministry of the Attorney General, 2005.
APPEAL
from a judgment of the Ontario Court of Appeal (Laskin, Moldaver and Armstrong JJ.A.),
2010 ONCA 616, 102 O.R. (3d) 688, 267 O.A.C. 259, 325 D.L.R. (4th) 488, 94
C.P.C. (6th) 262, [2010] O.J. No. 4046 (QL), 2010 CarswellOnt 7164,
affirming a decision of Fedak J., 2009 CarswellOnt 9420. Appeal allowed,
LeBel, Abella and Rothstein JJ. dissenting.
Julian N.
Falconer, Julian K. Roy and Sunil S. Mathai, for the appellant.
Eugene G.
Mazzuca, Kerry Nash and Rafal Szymanski, for the respondents.
Malliha Wilson, Dennis W. Brown, Q.C., and Christopher P. Thompson, for the intervener the Attorney
General of Ontario.
Maureen Whelton and Richard Macklin, for the intervener the Urban
Alliance on Race Relations.
Louis Sokolov and Daniel Iny, for the intervener the Criminal
Lawyers’ Association (Ontario).
Robert D.
Holmes, Q.C., for the intervener the British
Columbia Civil Liberties Association.
Ian J.
Roland and Michael Fenrick, for the intervener the Canadian
Police Association.
Tim Gleason and Sean Dewart, for the intervener the Canadian Civil Liberties Association.
The judgment of McLachlin
C.J. and Fish, Cromwell and Karakatsanis JJ. was delivered by
[1]
Cromwell and Karakatsanis JJ. — This appeal focuses on the discretionary application of issue
estoppel. More particularly, the question is whether the Ontario courts erred by
striking many of the claims in the appellant’s civil action against the police
on the basis that his complaint of police misconduct arising out of the same
facts had been dismissed by a police disciplinary tribunal.
[2]
The appellant, Wayne Penner, was arrested for
disruptive behaviour in an Ontario courtroom. He filed a complaint against two
police officers under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), alleging unlawful arrest and use
of unnecessary force. He also started a civil action against the court
security officer, the two police officers, their chief of police, and the
Regional Municipality of Niagara Regional Police Services Board (“Police
Services Board”) in the Superior Court of Justice, claiming damages arising out
of the same incident.
[3]
Mr. Penner’s complaint under the PSA was referred
by the Chief of Police to a disciplinary hearing presided over by a retired
police superintendent. The police officers were found not guilty of
misconduct. Mr. Penner was a party to the disciplinary hearing and the
subsequent appeals to the Ontario Civilian Commission on Police Services
(“Commission”) and the Divisional Court.
[4]
The respondents applied to have the civil action
dismissed on the basis of issue estoppel because, in their view, the
disciplinary hearing had finally resolved the key issues underpinning Mr.
Penner’s civil claims.
[5]
Many of Mr. Penner’s civil claims were struck on
the basis of issue estoppel. The Ontario Court of Appeal agreed with the
motion judge, and determined that the application of issue estoppel would not
work an injustice in this case.
[6]
On appeal to this Court, the appellant did not
seriously challenge that the preconditions of issue estoppel had been met. The
issue is whether the Court of Appeal erred in exercising its discretion to
apply issue estoppel to bar Mr. Penner’s civil claims. Mr. Penner contends
that the application of issue estoppel in this context would work an injustice
or unfairness because of the public interest in promoting police accountability.
He submits that the courts, as guardians of the Constitution and of individual
rights and freedoms, must oversee the exercise of police powers: the
importance of this judicial oversight requires that issue estoppel not apply to
a disciplinary hearing decision under the PSA.
[7]
The respondents reply that this case turns upon
its own exceptional circumstances, that the civil suit represents a collateral
attack on the final decision of the complaints process, and that the courts
below were right to apply issue estoppel in order to preclude relitigation of
the same issues finally decided in the disciplinary proceedings.
[8]
We conclude that there is not and should not be
a rule of public policy precluding the applicability of issue estoppel to
police disciplinary hearings based upon judicial oversight of police
accountability. The flexible approach to issue estoppel provides the court
with the discretion to refuse to apply issue estoppel if it will work an
injustice, even where the preconditions for its application have been met.
However, in our respectful view, the Court of Appeal erred in its analysis of
the significant differences between the purpose and scope of the two
proceedings, and failed to consider the reasonable expectations of the parties about the impact of the proceedings on their broader legal rights. Further, it is unfair to use the decision of the Chief of Police’s
designate to exonerate the Chief in a subsequent civil action. In the
circumstances of this case, it was unfair to the appellant to apply issue
estoppel to bar his civil action. We would allow the appeal.
I.
Background
[9]
In January 2003, Mr. Penner was sitting in a
Provincial Offences Court while his wife was on trial for a traffic ticket
issued by Constable Nathan Parker. It was alleged that Mr. Penner disrupted
the proceedings, refused to stop interrupting and to leave when asked to do so,
and resisted arrest by Constable Nathan Parker. Constables Parker and
Koscinski used force to remove him from the courtroom. Once outside the
courtroom, they again used force and handcuffed him. Handcuffed, Mr. Penner
was then taken to the Niagara Regional Police station by Constable Parker,
where he was strip-searched and put into a holding cell. He sustained a black
eye, numerous scrapes, a bruised knee, and a sore wrist, elbow and sore ribs.
Mr. Penner was escorted by police to a hospital where he was examined and
treated for injuries he had sustained during the arrest. Mr. Penner was
subsequently returned to the police station and charged with causing a
disturbance, breach of probation and resisting arrest. All charges were
withdrawn by the Crown some five months later, in June 2003.
[10]
After his arrest, Mr. Penner filed a public
complaint under ss. 56 and 57 of the PSA against Constables Parker and
Koscinski, alleging unlawful or unnecessary arrest, as well as use of
unnecessary force. This led to a disciplinary hearing for both police
officers. In addition, in July 2003, Mr. Penner filed a statement of claim in
the Ontario Superior Court of Justice in relation to the same arrest, by which
a civil action was commenced against the Police Services Board, Constables
Parker and Koscinski, the Chief of Police and the Court Security Officer. Mr.
Penner claimed damages for unlawful arrest, false imprisonment, use of
unnecessary force during and after the arrest, an unnecessary strip-search,
failure on the part of other officers to prevent his mistreatment, failure to
provide timely medical assistance, improper use of handcuffs, malicious prosecution
and failure to co-operate with the investigation of his allegations.
II.
Summary of the Complaint Proceedings
A.
Disciplinary Hearing Under the PSA (Decision
of Superintendent R. J. Fitches, Dated June 28, 2004; A.R., at pp.
99-116)
[11]
Under the PSA, a complaint is referred to
the chief of police: s. 60(4). (All statutory references are to the
legislation as it existed at the relevant time.) The chief is obliged to have
the complaint investigated (with some exceptions not relevant here) and, in
light of the results, to order a hearing into the matter if he or she is of the
opinion that the officer’s conduct could constitute misconduct: s. 64(1) and
(7). If a hearing is ordered, it is conducted by the chief or a designate on
his or her behalf: ss. 64(7) and 76. The chief also appoints the prosecutor:
s. 64(8). The complainant is made a party by statute and has participatory
rights (s. 69(3) and (4); Statutory Powers Procedure Act, R.S.O. 1990,
c. S.22, ss. 10 and 10.1), but no access to discovery or production of
documents beyond what the prosecution relies on, and there is no right to
compel the officer in question to testify: PSA, s. 69(7). The issue at
the hearing is whether the alleged misconduct has been “proved on clear and
convincing evidence” (s. 64(10)) and, if so, what penalty is to be imposed on
the officer under s. 68(1) and (5). No remedy or costs may be awarded to the
complainant.
[12]
Here, disciplinary charges of unnecessary and
unlawful arrest and use of unnecessary force were laid against two police
officers: O. Reg. 123/98, Part V, Sch., Code of Conduct, s. 2(1)(g)(i)
and (ii). The Chief appointed a retired police superintendent of the Ontario
Provincial Police to conduct the hearing on his behalf. The hearing took place
over the course of several days in 2004. Mr. Penner represented himself. As
the complainant, he led evidence, cross-examined witnesses and made
submissions. Several individuals who were present in the courtroom at the time
of Mr. Penner’s arrest gave evidence before the hearing officer at the
disciplinary hearing: the prosecutor, clerk of the court, court security officer,
two lay people awaiting their own respective trials, Mr. Penner, his wife, and
Constables Parker and Koscinski.
[13]
The hearing officer rejected much of the
Penners’ testimony. Instead, he relied primarily on the testimony of other
witnesses regarding the events surrounding Mr. Penner’s arrest and concluded
that Constables Parker and Koscinski had reasonable grounds to arrest Mr.
Penner for causing a disturbance in a public place. On the issue of whether
the officers had the lawful authority to make an arrest in a courtroom under
the Provincial Offences Act, R.S.O. 1990, c. P.33, while a Justice of
the Peace was presiding, the hearing officer concluded that the prosecutor had
failed to provide sufficient evidence to show, “in any clear and cogent way,
that Mr. Penner’s arrest was not authorized by statute”: p. xiii (A.R., at
p. 111). The hearing officer therefore dismissed the allegation of unlawful
arrest and found the constables not guilty of misconduct on this count.
[14]
Turning to the allegation of unnecessary use of
force, the hearing officer found that the Constables used a level of force that
was necessary to gain control over Mr. Penner. Relying upon his review of the
video record at the police station, he found that there was “no clear,
convincing, or cogent evidence whatsoever” of unnecessary force there either:
p. xvi (A.R., at p. 114).
B.
Appeal Before the Commission (Decision Dated
April 22, 2005; A.R., at pp. 117-30)
[15]
As a party to the disciplinary hearing, Mr.
Penner appealed the decision of the hearing officer to the Commission pursuant
to s. 70(1) of the PSA. He took the position before the Commission that
there were no legal grounds for his arrest.
[16]
The Commission concluded that the arrest in the
courtroom was unlawful because the Justice of the Peace gave no direction to
the Constables to arrest Mr. Penner. The Commission was satisfied that
there was clear and convincing evidence that Constables Parker and Koscinski
were guilty of misconduct due to an unlawful and unnecessary arrest, and thus
any force used was unjustified and unnecessary.
C.
Appeal Before the Ontario Superior Court of
Justice — Divisional Court (Parker v. Niagara Regional Police Service (2008),
232 O.A.C. 317)
[17]
On a further appeal by the constables pursuant
to s. 71(1) of the PSA, the Divisional Court held that the Commission
unreasonably ignored findings of fact made by the hearing officer, and that the
Commission was not justified in substituting their own findings. The
Divisional Court concluded that the officers had legal authority to make the
arrest and restored the hearing officer’s finding that the constables were not
guilty of misconduct.
III.
History of the Civil Action
[18]
Mr. Penner initiated a civil action in July 2003
based on the same events that formed the subject matter of the disciplinary
hearing, alleging, among other things, unlawful arrest and use of excessive
force. After the decision from the disciplinary hearing was reinstated by the
Divisional Court in January 2008, the respondents filed a motion to dismiss the
civil action on the basis of issue estoppel.
A. Ontario Superior Court of Justice (Fedak J.; 2009
CarswellOnt 9420)
[19]
The motion judge concluded that Mr. Penner was estopped
from bringing these claims. Mr. Penner’s civil action raised, among others,
the same two questions that were already decided by the disciplinary hearing
and restated by the Divisional Court: (1) was the arrest lawful? and (2) was
unnecessary force used, either at the court or at the police station? The
judge applied the test outlined in Danyluk v. Ainsworth Technologies Inc.,
2001 SCC 44, [2001] 2 S.C.R. 460, and concluded that the three
preconditions for issue estoppel had been met.
[20]
First, the hearing officer’s decision was
judicial and the hearing fulfilled the requirements of procedural fairness
because Mr. Penner made the complaint, appeared before the decision maker, led
evidence, examined witnesses and made written submissions. Second, the decision
was final. And third, the same parties to the civil action were also engaged
in the disciplinary hearing.
[21]
As to the second part of the Danyluk
test, the motion judge stated that there were no grounds to exercise his
discretion to not apply issue estoppel.
[22]
We are assuming but not deciding that the
decision of the hearing officer was admissible before the motion judge for the
purpose of considering issue estoppel. This issue was not addressed in the
decisions below. Given our disposition, it is not necessary to decide the
issue.
B. Ontario Court of Appeal (Laskin J.A., Moldaver and
Armstrong JJ.A. Concurring; 2010 ONCA 616, 102 O.R. (3d) 688)
[23]
The Court of Appeal agreed with the motion judge
that the three preconditions for issue estoppel had been met. However, the
Court of Appeal found that the motion judge erred in failing to explain why
there were no grounds to exercise his discretion to not apply issue estoppel.
Accordingly, the Court of Appeal considered whether it would be unfair or
unjust to apply issue estoppel despite the satisfaction of the three
preconditions.
[24]
The Court of Appeal acknowledged that the
different purposes of the disciplinary hearing and the civil action weighed
against the application of issue estoppel. The Court of Appeal concluded that
the legislature did not intend to preclude Mr. Penner’s civil action simply
because he filed a public complaint under the PSA: para. 42. Further,
the Court of Appeal considered that Mr. Penner had no financial stake in the
disciplinary hearing (as the statute does not provide for compensation to a
public complainant affected by police misconduct), although the strength of
that factor was diminished, in its view, by the potential benefit to Mr. Penner
had there been a finding of misconduct. Despite these factors weighing against
the application of issue estoppel, the Court of Appeal concluded that they were
not determinative considerations in the discretionary analysis.
[25]
The Court of Appeal ultimately concluded that
applying issue estoppel would not work an injustice and decided against
exercising its discretion to not apply the doctrine based on the following
factors:
•
on issues of reasonable and probable grounds for
arrest, as well as the use of excessive force during arrest, the hearing officer
had as much expertise as a court (para. 45);
•
the disciplinary hearing had “all the hallmarks
of an ordinary civil trial”, and, in this case, the different standards of
proof in police disciplinary hearings and in civil actions are immaterial
(paras. 48-51);
•
Mr. Penner actively participated in the
disciplinary hearing (para. 52); and
•
the PSA provides an aggrieved party with
the right to appeal to the Commission, a right which Mr. Penner exercised
(para. 53).
[26]
Accordingly, the Court of Appeal dismissed the
appeal.
IV. Standard of Review
[27]
A discretionary decision of a lower court will
be reversible where that court misdirected itself or came to a decision that is
so clearly wrong that it amounts to an injustice: Elsom v. Elsom,
[1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary
decision is also appropriate where the lower court gives no or insufficient
weight to relevant considerations: Friends of the Oldman River Society v.
Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-77.
V.
Analysis
A.
Issue Estoppel: The Legal Framework
[28]
Relitigation of an
issue wastes resources, makes it risky for parties to rely on the results of
their prior litigation, unfairly exposes parties to additional costs, raises
the spectre of inconsistent adjudicative determinations and, where the initial
decision maker is in the administrative law field, may undermine the
legislature’s intent in setting up the administrative scheme. For these reasons, the law has adopted a number of doctrines to
limit relitigation.
[29]
The one relevant on
this appeal is the doctrine of issue estoppel. It
balances judicial finality and economy and other considerations of fairness to
the parties. It holds that a
party may not relitigate an issue that was finally decided in prior judicial
proceedings between the same parties or those who stand in their place.
However, even if these elements are present, the court retains discretion to
not apply issue estoppel when its application would work an injustice.
[30]
The principle underpinning this discretion is
that “[a] judicial doctrine developed to serve the ends
of justice should not be applied mechanically to work an injustice”: Danyluk,
at para. 1; see also Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,
[2003] 3 S.C.R. 77, at paras. 52-53.
[31]
Issue estoppel, with its residual discretion,
applies to administrative tribunal decisions. The legal framework governing
the exercise of this discretion is set out in Danyluk. In our view,
this framework has not been overtaken by this Court’s subsequent jurisprudence.
The discretion requires the courts to take into account the range and
diversity of structures, mandates and procedures of administrative decision
makers; however, the discretion must not be exercised so as to, in effect,
sanction collateral attack, or to undermine the integrity of the administrative
scheme. As highlighted in this Court’s jurisprudence, particularly since Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, legislation establishing
administrative tribunals reflects the policy choices of the legislators and
administrative decision making must be treated with respect by the courts.
However, as this Court said in Danyluk, at para. 67: “The objective is
to ensure that the operation of issue estoppel promotes the orderly
administration of justice but not at the cost of real injustice in the
particular case.”
B.
No Public Policy Rule Precluding Issue
Estoppel With Respect to Police Disciplinary Hearings
[32]
The Ontario Court of Appeal applied a
conventional analysis of issue estoppel, analyzing the various factors
identified in Danyluk. Mr. Penner and a number of interveners ask this
Court, as a matter of public policy, to prohibit the application of issue
estoppel to findings made in a police disciplinary hearing if it prevents a
complainant from accessing the courts for damages on the same claims. They
submit that the application of issue estoppel to police disciplinary hearings
usurps the role of the courts as guardians of the Constitution and the rule of
law, and that public policy requires that police accountability be subject to
judicial oversight. These submissions were raised overtly for the first time
before this Court.
[33]
Police oversight is a complex issue that
attracts intense public attention and differing public policy responses. Over
time, legislative frameworks have been revised with the stated goals of
promoting efficient police services and increasing the transparency and
accountability of the public complaints process. In a 2006 case, the Ontario
Divisional Court concluded that the legislature allowed for “institutional
bias” in the manner of appointing a hearing officer under s. 76(1) of the PSA:
Sharma v. Waterloo Regional Police Service (2006), 213 O.A.C. 371, at
para. 27. The parties in this case do not contest that this is a legitimate
exercise of the legislature’s authority, and the Divisional Court in Sharma,
at para. 28, concluded that the ability to appoint “retired police officers not
associated with this force is capable of founding such independence as
necessary”. See also the Honourable Patrick J. LeSage, Report on the Police
Complaints System in Ontario (2005), at pp. 77-78.
[34]
The public complaints process incorporates a
number of features to enhance public participation and accountability. For
instance, pursuant to Part II of the PSA, the Commission, as an agency
comprised of civilian members, provides independent oversight of police
services in Ontario to ensure fairness and accountability to the public. Part
V sets out a comprehensive public complaints process by which members of the
public can file official complaints against policies or services. Judicial
oversight of disciplinary hearings under the PSA is available by
statutory right of appeal to the Commission and then to the Divisional Court: see
ss. 70(1) and 71(1).
[35]
We are not persuaded that it is either necessary
or desirable to create a rule of public policy excluding police disciplinary
hearings from the application of issue estoppel. The doctrine of issue
estoppel allows for the exercise of discretion to ensure that no injustice
results; it calls for a case-by-case review of the circumstances to determine
whether its application would be unfair or unjust.
C.
Discretionary Application of Issue Estoppel
(1) Approach to the Exercise of Discretion
[36]
We agree with the decisions of the courts below
that all three preconditions for issue estoppel are established in this case.
Thus, this case turns upon the Court of Appeal’s exercise of discretion in
determining whether it would be unjust to apply the doctrine of issue estoppel
in this case.
[37]
This Court in Danyluk, at paras. 68-80,
recognized several factors identified by Laskin J.A. in Minott v. O’Shanter
Development Co. (1999), 42
O.R. (3d) 321 (C.A.), that are relevant to the
discretionary analysis in the context of a prior administrative tribunal
proceeding.
[38]
The list of factors in Danyluk merely
indicates some circumstances that may be relevant in a particular case to
determine whether, on the whole, it is fair to apply issue estoppel. The list
is not exhaustive. It is neither a checklist nor an invitation to engage in a
mechanical analysis.
[39]
Broadly speaking, the factors identified in the
jurisprudence illustrate that unfairness may arise in two main ways which
overlap and are not mutually exclusive. First, the unfairness of applying
issue estoppel may arise from the unfairness of the prior
proceedings. Second, even where the prior proceedings were conducted fairly
and properly having regard to their purposes, it may nonetheless be unfair to
use the results of that process to preclude the subsequent claim.
(a) Fairness of the Prior Proceedings
[40]
If the prior proceedings
were unfair to a party, it will likely compound the unfairness to hold that
party to its results for the purposes of a subsequent proceeding. For example, in Danyluk, the prior administrative decision
resulted from a process in which Ms. Danyluk had not received notice of the
other party’s allegations or been given a chance to respond to them.
[41]
Many of the factors identified in the
jurisprudence, including the procedural safeguards, the availability of an
appeal, and the expertise of the decision maker, speak to the opportunity to
participate in and the fairness of the administrative proceeding. These
considerations are important because they address the question of whether there
was a fair opportunity for the parties to put forward their position, a fair
opportunity to adjudicate the issues in the prior proceedings and a means to
have the decision reviewed. If there was not, it may well be unfair to hold
the parties to the results of that adjudication for the purposes of different
proceedings.
(b) The Fairness of Using the Results of
the Prior Proceedings to Bar Subsequent Proceedings
[42]
The second way in which the operation of issue
estoppel may be unfair is not so much concerned with the fairness of the prior
proceedings but with the fairness of using their results to preclude the
subsequent proceedings. Fairness, in this second
sense, is a much more nuanced enquiry. On the one hand, a party is expected to raise all appropriate issues and is not
permitted multiple opportunities to obtain a favourable judicial
determination. Finality is important both to the parties and to the judicial
system. However, even if the prior proceeding was conducted fairly and
properly having regard to its purpose, injustice may arise from using the
results to preclude the subsequent proceedings. This may occur, for example,
where there is a significant difference between the purposes, processes or
stakes involved in the two proceedings. We recognize that there will always be
differences in purpose, process and stakes between administrative and court
proceedings. In order to establish unfairness in the second sense we have
described, such differences must be significant and assessed in light of this
Court’s recognition that finality is an objective that is also important in the
administrative law context.
As Doherty and Feldman JJ.A. wrote in Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at para. 39, if courts routinely declined to apply issue estoppel
because the procedural protections in the administrative proceedings do not
match those available in the courts, issue estoppel would become the exception
rather than the rule.
[43]
Two factors discussed in Danyluk — “the wording of the
statute from which the power to issue the administrative order derives” (paras.
68-70) and “the purpose of the legislation” (paras.
71-73), including the degree of financial stakes involved — are highly relevant
here to the fairness analysis in this second sense. They take into account the
intention of the legislature in creating the administrative proceedings and
they shape the reasonable expectations of the parties
about the scope and effect of the proceedings and their impact on the parties’
broader legal rights: Minott,
at pp. 341-42.
[44]
For example, in British
Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998),
50 B.C.L.R. (3d) 1 (C.A.), a defendant in a civil action relied on the decision
of a Deputy Chief Forester to preclude the Crown’s civil action for damages
caused by a forest fire. The Court of Appeal upheld the chambers judge’s
decision to exercise discretion against applying issue estoppel. As the
statute did not contemplate that the Deputy Chief Forester’s decision about the
cause of a fire would be a final resolution of that issue, it followed that it
“was not within the reasonable expectation of either party at the time of those
proceedings” that it would be: Bugbusters, at para. 30.
[45]
Thus, where the
purposes of the two proceedings diverge significantly, applying issue estoppel
may be unfair even though the prior proceeding was conducted with scrupulous
fairness, having regard to the purposes of the legislative scheme that governs
the prior proceeding. For example, where little is at stake for a litigant in
the prior proceeding, there may be little incentive to participate in it with
full vigour: Toronto (City), at para. 53.
[46]
There is also a general
policy concern linked to the purpose of the legislative scheme which governs
the prior proceeding. To apply issue estoppel based on a proceeding in which a
party reasonably expected that little was at stake risks inducing future
litigants to either avoid the proceeding altogether or to participate more
actively and vigorously than would otherwise make sense. This could undermine
the expeditiousness and efficiency of administrative regimes and therefore
undermine the purpose of creating the tribunal: Burchill v. Yukon (Commissioner), 2002 YKCA 4 (CanLII), at para. 28; Minott, at p. 341;
and Danyluk, at para. 73. In the context of this appeal, it might
discourage citizens from filing complaints about police misconduct.
[47]
Thus, the text and purpose of the legislative
scheme shape the parties’ reasonable expectations in relation to the scope and
effect of the administrative proceedings. They guide how and to what extent
the parties participate in the process. Where the
legislative scheme contemplates multiple proceedings and the purposes of those
proceedings are widely divergent, the application of the doctrine in such
circumstances might not only upset the parties’ legitimate and reasonable
expectations but may also undermine the efficacy and policy goals of the
administrative proceedings by either encouraging more formality and protraction
or even discouraging access to the administrative proceedings altogether.
[48]
These considerations are also relevant to
weighing another factor identified in Danyluk: the procedural safeguards
available to the parties in the prior administrative process. The
consideration of a party’s decision whether to take advantage of procedural
protections available in the prior proceeding cannot be divorced from the
consideration of the party’s reasonable expectations about what is at stake in
those proceedings or the fundamentally different purposes of the two
proceedings. The connections between the relevant considerations must be
viewed as a whole.
(2) Fairness of Using the Disciplinary
Finding to Preclude a Civil Action in This Case
[49]
In our respectful view, the Court of Appeal
failed to focus on fairness in the second sense we have just described. We do not quarrel with the finding of the Court of Appeal that the disciplinary hearing was itself fair and that
Mr. Penner participated in a meaningful way. However, while the court
thoroughly assessed the fairness of the disciplinary proceeding itself, it
failed to fully analyze the fairness of using the results of that process to
preclude the appellant’s civil claims, having regard to the nature and scope of
those earlier proceedings and the parties’ reasonable expectations in relation
to them.
(a) The
Legislation Establishing the Disciplinary Hearing
[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.
(b) Reasonable Expectations of the
Parties: Different Purposes of the Proceedings and Other Considerations
[53]
The Court of Appeal recognized that the purposes
of a police disciplinary proceeding and a civil action were different and that
this weighed against the application of issue estoppel.
[54]
The police disciplinary hearing is part of the
process through which the officers’ employer decides whether to impose
employment-related discipline on them. By making the complainant a party, the PSA
promotes transparency and public accountability. However, this process
provides no remedy or costs for the complainant. A civil action, on the other
hand, provides a forum in which a party that has suffered a wrong may obtain
compensation for that wrong.
[55]
In addition to the legislative text, several
other facts point to the same conclusion about the parties’ reasonable
expectations about the impact of the disciplinary hearing on the civil action.
[56]
First, Mr. Penner’s civil action was filed in
July 2003, almost a year before the hearing officer released his
decision on June 28, 2004. In Danyluk, the
civil proceedings had commenced before the administrative proceedings
concluded. Binnie J. reasoned that this weighed against applying issue
estoppel because “the respondents were well aware, in law and in fact, that
they were expected to respond to parallel and to some extent overlapping
proceedings”: para. 70.
[57]
Second, Hermiston J., in the most pertinent
Ontario case on the question of issue estoppel in the police disciplinary
hearing context at the time, Porter v. York (Regional Municipality) Police,
[2001] O.J. No. 5970 (QL) (S.C.J.), stated that an acquittal of an officer at a
disciplinary hearing did not give rise to issue estoppel in relation to
the same issues in a subsequent civil action.
[58]
Third, a person in Mr. Penner’s position might
well think it unlikely that a proceeding in which he or she had no personal or
financial stake could preclude a claim for significant damages in his or her
civil action.
(c) Financial Stake in the Disciplinary
Hearing
[59]
The Court of Appeal noted that the lack of a
financial stake in the administrative proceeding, on its own, does not
ordinarily resolve how the court should exercise its discretion in applying
issue estoppel in a civil action. However, the Court of Appeal went further.
With respect to the absence of
a financial stake in the outcome of the disciplinary hearing, the court said, at para. 43:
This is an important consideration
weighing against applying issue estoppel, but its strength is diminished by the
potential indirect benefit to Mr. Penner from the disciplinary proceedings.
If, for example, the hearing officer had found that the two police officers did
not have reasonable and probable grounds to arrest Mr. Penner or used excessive
force on him, those findings would likely have estopped the officers from
asserting otherwise in Mr. Penner’s civil action. In other words, issue
estoppel works both ways.
[60]
In our view, this analysis is flawed. It cannot
necessarily be said that issue estoppel “works both ways” here. As the Court
of Appeal recognized, because the PSA requires that misconduct by a
police officer be “proved on clear and convincing evidence” (s. 64(10)), it
follows that such a conclusion might, depending upon the nature of the factual
findings, properly preclude relitigation of the issue of liability in a civil
action where the balance of probabilities — a lower standard of proof — would
apply. However, this cannot be said in the case of an acquittal. The
prosecutor’s failure to prove the charges by “clear and convincing evidence”
does not necessarily mean that those same allegations could not be established
on a balance of probabilities. Given the different standards of proof, there
would have been no reason for a complainant to expect that issue estoppel would
apply if the officers were acquitted. Indeed, in Porter, at para. 11,
the court refused to apply issue estoppel following an acquittal in a police
disciplinary hearing because the hearing officer’s decision “was determined by
a high standard of proof and might have been different if it had been decided
based on the lower civil standard”. Thus, the parties could not reasonably
have contemplated that the acquittal of the officers at the disciplinary
hearing would be determinative of the outcome of Mr. Penner’s civil action.
[61]
By assuming that issue estoppel “works both
ways”, the Court of Appeal attached too little weight to the fact that Mr.
Penner had no financial stake in the disciplinary hearing and wrongly concluded
that he had more at stake than he could reasonably have thought at the time.
(d) Issue Estoppel May Work to Undermine the
Purpose of Administrative Proceedings
[62]
Another important
policy consideration referred to earlier arises in this case: the risk of
adding to the complexity and length of administrative proceedings by attaching
undue weight to their results through applying issue estoppel. It is true that Mr. Penner could have participated even more fully
in the proceedings by hiring counsel in an attempt to obtain a finding of
misconduct so as to assist his civil action. But accepting this line of
argument too readily may lead to unintended and undesirable results. It risks
turning the administrative process into a proxy for Mr. Penner’s civil
action. If it is before the hearing officer, and not the court, that an action
for damages is to be won or lost, litigants in Mr. Penner’s position will have
every incentive to mount a full-scale case, which would tend to defeat the
expeditious operation of the disciplinary hearing.
[63]
In the context of this appeal, it would also
mean that the officers, who have much at stake in the hearing, would
effectively be forced to face two prosecutors rather than one, given the
presence of counsel for the complainant. We doubt that this would enhance
either the efficacy of the disciplinary hearing, or the fairness to the
officers in that hearing. Finally, a further significant risk is that potential complainants
will simply not come forward with public complaints in order to avoid
prejudicing their civil actions.
(e) The Role of the Chief of Police
[64]
Under the public complaints process of the PSA
at the relevant time, the Chief of Police investigated and determined whether a
hearing was required following the submission of a public complaint. The Chief
of Police appointed the investigator, the prosecutor and the hearing officer.
[65]
It has been recognized that these arrangements
are not objectionable for the purposes of a disciplinary hearing (as in Sharma).
However, in our view, the fact that this decision was made by the designate of
the Chief of Police should be taken into account in assessing the fairness of
using the results of the disciplinary process to preclude Mr. Penner’s civil
claims. While this point was not clearly placed before the Court of Appeal, we
think it is an important one.
[66]
Applying issue estoppel against the complainant
here had the effect of permitting the Chief of Police to become the judge of
his own case, with the result that his designate’s decision had the effect of
exonerating the Chief and his police service from civil liability. In our
view, applying issue estoppel here is a serious affront to basic principles of
fairness.
[67]
We emphasize that this unfairness does not
reside in the Chief of Police carrying out his statutory duties. The parties
accept that, given the statutory framework, there is no objection on fairness
grounds to the role of the Chief and there is certainly no suggestion that he
failed in any way to carry out his statutory duties. Further, no obvious
unfairness arises if the disciplinary decision finds police misconduct, as this
is a decision against the interests of the chief or the Police Services Board. The
unfairness that concerns us only arises at the point that the Chief’s (or his
designate’s) decision that there was no police misconduct in a disciplinary
context is used for the quite different purpose of exonerating him, by means of
issue estoppel, from civil liability relating to the same matter.
[68]
Had the Court of Appeal been given the
opportunity to fully consider the importance of these points, our view is that
it would have seen that applying issue estoppel against the appellant in the
circumstances of this case was fundamentally unfair.
VI. Conclusion
[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.
VII. Disposition
[72]
We would allow the appeal with costs to the
appellant throughout.
The reasons of LeBel, Abella
and Rothstein JJ. were delivered by
[73]
LeBel and Abella
JJ. (dissenting) — Litigation
must come to an end, in the interests of the litigants themselves, the justice
system and our society. The finality of litigation is a fundamental principle
assuring the fairness and efficacy of the justice system in Canada. The
doctrine of issue estoppel advances this principle. It seeks to protect the
reasonable expectation of litigants that they are able to rely on the outcome
of a decision made by an authoritative adjudicator, regardless of whether that
decision was made in the context of a court or an administrative proceeding.
The purposes of proceedings may vary like the governing procedures, but the
principle of finality of litigation should be maintained.
[74]
This appeal concerns the proper approach to the
discretionary application of issue estoppel in the context of prior
administrative proceedings dealing with police conduct.
[75]
The applicable approach to issue estoppel was
most recently articulated by this Court in 2011 in British Columbia
(Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3
S.C.R. 422. This is the precedent, therefore, that governs the application of
the doctrine in this case.
[76]
The key relevant aspect of this precedent is
that it moved away from the approach taken in Danyluk v. Ainsworth
Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, which
enunciated a different test for the discretionary application of issue estoppel
in the context of administrative tribunals. In so doing, Danyluk said
that the approach should be “fairness” and set out a number of factors for
assessing how “fairness” applied. In our view, these factors can no longer play
the same role, nor be given the same weight, based on this Court’s subsequent
jurisprudence starting with Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190. These factors have largely been overtaken by the
Court’s subsequent jurisprudence. For example, the breach of natural justice
factor based on the procedural differences between courts and administrative
tribunals and the expertise of the decision maker focus on concepts eschewed by
this Court in Dunsmuir and Smith v. Alliance Pipeline Ltd., 2011
SCC 7, [2011] 1 S.C.R. 160. 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 S.C.R. 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.
[78]
The “twin principles” which underlie the
doctrine of issue estoppel — “that there should be an end to litigation and . .
. that the same party shall not be harassed twice for the same cause” (Carl
Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853
(H.L.), at p. 946) — are core principles which focus on achieving fairness and
preventing injustice by preserving the finality of litigation. This, as
the majority said in Figliola, is the case whether we are dealing
with courts or administrative tribunals. Our colleagues’ approach undermines
these principles and risks transforming issue estoppel into a free-floating
inquiry into “fairness” and “injustice” for administrative tribunals and
revives an approach that our Court refused to apply in Figliola.
I. Background
[79]
The appellant, Wayne Penner, filed a public
complaint against two police officers alleging that the officers were guilty of
police misconduct under the Police Services Act, R.S.O. 1990, c.
P.15, and the Code of Conduct (O. Reg. 123/98, Part V, Sch.). His
complaint alleged that the officers made an unlawful arrest and used
unnecessary force, both during the arrest and at the police station.
Mr. Penner also commenced a civil action in the Ontario Superior Court of
Justice seeking damages against the same police officers for unlawful arrest,
use of unnecessary force, false imprisonment, and malicious prosecution.
[80]
In 2004, Mr. Penner’s complaint under the Police
Services Act proceeded to a disciplinary hearing before a hearing officer,
a retired superintendent of the Ontario Provincial Police, who was appointed by
the Chief of Police. The hearing took place over the course of several days,
during which time 13 witnesses were called, exhibits were filed, including
audio and video recordings of the relevant events, and each party including Mr.
Penner had the opportunity to make submissions on points of law.
Mr. Penner, as the complainant, had the option to retain legal counsel but
chose to represent himself. He was active in the proceedings: he testified,
participated in cross-examination, and provided written submissions.
[81]
The hearing officer gave written reasons for his
decision. In his reasons, he dismissed Mr. Penner’s complaint and found the
police officers not guilty of any misconduct, rejecting most of Mr. Penner’s
evidence, and preferring the testimony of the other witnesses, as well as the
audio and video recordings of the events.
[82]
He made the following findings of fact:
•
he “was unable to see any evidence whatsoever
of any excessive or unnecessary force used on Mr. Penner” (A.R., at p. 112
(emphasis added));
•
“there is no clear, convincing or cogent
evidence whatsoever to indicate that Mr. Penner was the victim of the
unnecessary or unlawful application of force while in custody at the police
station” (p. 114 (emphasis added)); and
•
he was “convinced that Mr. Penner was exhibiting
behaviour that would be consistent with escalating hostility” and that
therefore “the force that was used during Mr. Penner’s arrest was totally
justified” (p. 115 (emphasis added)).
[83]
Mr. Penner appealed on the basis of these
findings to the Ontario Civilian Commission on Police Services. The Commission
overturned the decision of the hearing officer for the reason that the officers
did not have the lawful authority to arrest Mr. Penner in a courtroom presided
over by a Justice of the Peace.
[84]
The respondents sought judicial review of the
Commission’s decision in the Ontario Divisional Court. The Divisional Court
unanimously found the Commission’s decision to be unreasonable and restored the
hearing officer’s decision (Parker v. Niagara Regional Police Service
(2008), 232 O.A.C. 317). The Divisional Court found that the findings of fact
made by the hearing officer were based on an “ample evidentiary foundation” and
that there was “no manifest error, no ignoring of conclusive or relative
evidence, nor any indication he misunderstood the evidence or drew erroneous
conclusions from it” (para. 28). Mr. Penner did not appeal the decision of the
Divisional Court to the Ontario Court of Appeal.
[85]
Following the conclusion of the judicial review
proceedings, the respondents (who are defendants in the civil action) brought a
motion under Rule 21.01 of the Rules of Civil Procedure, R.R.O.
1990, Reg. 194, to dismiss Mr. Penner’s civil claims for unlawful arrest,
use of unnecessary force, false imprisonment and malicious prosecution, all on
the basis of issue estoppel. The motion judge granted the Rule 21 motion and
struck these allegations from Mr. Penner’s statement of claim.
[86]
The Ontario Court of Appeal dismissed Mr.
Penner’s appeal (2010 ONCA 616, 102 O.R. (3d) 688). The Court of Appeal agreed
with the motion judge that the preconditions for issue estoppel had been met
and found that there were no grounds to exercise their discretion not to apply
the doctrine in this case.
[87]
In his appeal to this Court, Mr. Penner does not
directly challenge the Court of Appeal’s finding that the preconditions for
issue estoppel are satisfied. Rather, his appeal focuses on whether the Court
of Appeal properly exercised its discretion to apply issue estoppel and argues
that it should have declined to do so.
II. Analysis
A. The Role of Issue
Estoppel
[88]
The doctrine of issue estoppel seeks to protect
the finality of litigation by precluding the relitigation of issues that have
been conclusively determined in a prior proceeding. It arose as a doctrinal
response to the “twin principles . . . that there should be an end to
litigation and . . . that the same party shall not be harassed twice for the
same cause” (Carl Zeiss Stiftung, at p. 946; K. R. Handley, Spencer
Bower and Handley: Res Judicata (4th ed. 2009), at p. 4; Donald J. Lange, The
Doctrine of Res Judicata in Canada (3rd ed. 2010), at pp. 4-7).
[89]
These twin principles are often expressed in
terms of the public interest in ensuring the finality of litigation, whether it
is civil, criminal or administrative, and the individual interests of
protecting the parties against the unfairness of repeated suits and
prosecutions (see EnerNorth Industries Inc., Re, 2009 ONCA 536,
96 O.R. (3d) 1, at para. 53; Handley, at p. 4; Lange, at p. 7). However, it is
clear that the overarching goal underlying both principles is to protect the
fairness and integrity of the justice system by preventing duplicative
proceedings. In other words, these principles are not competing values, but
are fundamentally linked. As this Court recently recognized in Figliola,
the ultimate goal of issue estoppel is not achieved by simply balancing
fairness and finality, but in seeking to protect the “fairness of finality
in decision-making and the avoidance of the relitigation of issues already
decided by a decision-maker with the authority to resolve them” (para. 36
(emphasis added)).
[90]
The foundational importance of finality to the
judicial system and the individual parties was emphatically explained by
Doherty J.A. in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41
O.R. (3d) 257 (C.A.), at pp. 264-65, leave to appeal refused, [1999] 1 S.C.R. xiv:
Finality is an important
feature of our justice system, both to the parties involved in any specific
litigation and on an institutional level to the community at large. For the
parties, it is an economic and psychological necessity. For the community, it
places some limitation on the economic burden each legal dispute imposes on the
system and it gives decisions produced by the system an authority which they
could not hope to have if they were subject to constant reassessment and
variation: J.I. Jacob, The Fabric of English Civil Justice, Hamlyn
Lectures 1987, at pp. 23-24.
The
parties and the community require that there be a definite and discernible end
to legal disputes. There must be a point at which the parties can proceed on
the basis that the matter has been decided and their respective rights and
obligations have been finally determined. Without a discernible end point, the
parties cannot get on with the rest of their lives secure in the knowledge that
the issue has finally been determined, but must suffer the considerable
economic and psychological burden of indeterminate proceedings in which their
respective rights and obligations are revisited and reviewed as circumstances
change.
[91]
As a species of res judicata, issue
estoppel is conceptually related to the doctrines of cause of action estoppel,
collateral attack, and abuse of process (Lange, at pp. 1-4). Both individually
and together, these doctrines are of fundamental importance to the finality
principle — they are “not merely . . . technical rule[s]” but rather, “g[o] to
the heart of a system of civil justice that strives for the truth of the matter
[and] recognizes that perfection is an unattainable goal and finality is a
practical necessity” (Revane v. Homersham, 2006 BCCA 8, 53
B.C.L.R. (4th) 76, at para. 17).
B. The Test for Issue
Estoppel
[92]
The three preconditions for the operation of
issue estoppel were set out by Dickson J. in Angle v. Minister of National
Revenue, [1975] 2 S.C.R. 248: (1) whether the same question has been
decided; (2) whether the judicial decision which is said to create the estoppel
is final; and (3) whether the parties to the decision or their privies were the
same in both proceedings (p. 254).
[93]
However, as this Court recognized in Danyluk,
courts retain a residual discretion not to apply issue estoppel in an
individual case. Thus, in that case, this Court set out a two-step test for
the application of issue estoppel:
The first step is to determine whether
the moving party . . . has established the preconditions to the operation of
issue estoppel set out by Dickson J. in Angle, supra. If
successful, the court must still determine whether, as a matter of discretion,
issue estoppel ought to be applied . . . . [Emphasis in original;
citations omitted; para. 33.]
[94]
Although initially developed in the context of
prior court proceedings, issue estoppel has long been applied to judicial or
quasi-judicial decisions pronounced by administrative boards and tribunals. In
the administrative law context, “the more specific objective is to balance
fairness to the parties with the protection of the administrative
decision-making process, whose integrity would be undermined by too readily
permitting collateral attack or relitigation of issues once decided” (Danyluk,
at para. 21).
[95]
Consistent with the principles underlying issue
estoppel, the fairness to the parties is focused on preventing parties from
undergoing the burden of duplicative litigation — the objective of fairness is
linked to the principle of finality. Indeed, in Danyluk, Binnie
J., writing for the Court, focused on the importance of finality in
litigation:
An issue, once decided, should not
generally be re-litigated to the benefit of the losing party and the harassment
of the winner. A person should only be vexed once in the same cause.
Duplicative litigation, potential inconsistent results, undue costs, and
inconclusive proceedings are to be avoided. [para. 18]
[96]
In other words, Binnie J. stated, “[a] litigant
. . . is only entitled to one bite at the cherry” (para. 18). Underlying the
application of issue estoppel in this context is the theory that “estoppel is a
doctrine of public policy that is designed to advance the interests of justice”
(para. 19).
[97]
This Court revisited the exercise of discretion
to apply issue estoppel in the context of prior administrative proceedings in Boucher
v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279. The Court acknowledged
the different purposes of the competing procedures. Nevertheless, in that case
considerable emphasis was placed on the stability and finality of decisions and
the importance of deference and adequate alternative remedies in the
administrative context as crucial considerations in determining whether issue
estoppel should be applied in a particular case:
The
situation in which the respondent could find itself if the principles of res
judicata or issue estoppel were not applied illustrates the danger of a
collateral attack and of the failure to avail oneself in a timely manner of the
recourses against decisions of administrative bodies or courts of law that are
available in the Canadian legal system. The stability and finality of
judgments are fundamental objectives and are requisite conditions for ensuring
that judicial action is effective and that effect is given to the rights of
interested parties. [Emphasis added; para. 35.]
[98]
More recently, in Figliola, this
Court considered the discretionary application of issue estoppel and its
related doctrines in administrative proceedings. In that case, the majority
emphasized the importance of the underlying principle of finality to the
integrity of the justice system, noting that the discretionary application of
doctrines such as issue estoppel, “should be guided less by precise doctrinal
catechisms and more by the goals of the fairness of finality in
decision-making and the avoidance of . . . relitigation” (para. 36).
[99]
In Figliola, the majority
explicitly rejected an approach that suggests that fairness and finality are
discrete objectives. Rather, the majority embraced the notion that preserving
the finality of administrative adjudication and preventing relitigation better
protected the fairness and integrity of the justice system and the interests of
justice:
Justice is enhanced by protecting the
expectation that parties will not be subjected to the relitigation in a
different forum of matters they thought had been conclusively resolved. Forum
shopping for a different and better result can be dressed up in many attractive
adjectives, but fairness is not among them. [para. 36]
[100]
This approach is consistent with the long-standing
principles underlying issue estoppel and res judicata that emphasize and
protect the finality of litigation.
C. Issue Estoppel and
Administrative Decisions
[101]
This Court’s recent affirmation of the principle
of finality underlying issue estoppel in Figliola is crucial to
preserving the principles underlying our modern approach to administrative
law. Our colleagues’ failure to safeguard the finality of litigation also
substantially undermines these principles. In applying the doctrine of issue
estoppel, there is no reason to treat administrative proceedings differently
from court proceedings in the name of “fairness”. To do so would undermine the
entire system of administrative law.
[102]
In Rasanen v. Rosemount Instruments Ltd.
(1994), 17 O.R. (3d) 267 (C.A.), the purpose
of administrative tribunals was described as follows:
[Administrative tribunals]
were expressly created as independent bodies for the purpose of being an
alternative to the judicial process, including its procedural panoplies.
Designed to be less cumbersome, less expensive, less formal and less delayed,
these impartial decision-making bodies were to resolve disputes in their area
of specialization more expeditiously and more accessibly, but no less
effectively or credibly . . . .
. .
. The methodology of dispute resolution in these tribunals may appear
unorthodox to those accustomed only to the court-room’s topography, but while
unfamiliar to a consumer of judicial justice, it is no less a form and forum of
justice to its consumers. [Emphasis in original; pp. 279-80.]
[103]
In applying issue estoppel in the context of
administrative law, differences in the process or procedures used by the
administrative body should not be used to override the principle of finality.
The different purposes of administrative tribunal proceedings should not be
invoked either. Otherwise, every substantive legal issue could be reconsidered
in subsequent or concurrent civil proceedings, as it could almost always be
said that such proceedings have different purposes. The discretionary
application of issue estoppel in the administrative law context recognizes that
the full panoply of protections and procedures may not exist in an
administrative proceeding, but that neither a lack of such protections nor the
different objectives of an administrative process are, by themselves,
sufficient to warrant the exercise of the court’s discretion. In other words,
the moving party cannot seek to “rely on general fairness concerns which exist
whenever the finding relied on emanates from a tribunal whose procedures are
summary and whose tasks are narrower than those used and performed by the
courts” (Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at
para. 41).
[104]
The majority in Figliola consistently
referred to tribunal and court decisions together when discussing the
applicable principles, including the exercise of discretion, and never
distinguished between them. The idea that discretion should be exercised more
broadly when dealing with administrative tribunals was found only in the
dissent (para. 61).
[105]
The policy objectives underlying issue estoppel
— avoiding duplicative litigation, inconsistent results, undue costs, and
inconclusive proceedings — are enhanced by acknowledging administrative
decisions as binding in appropriate circumstances. As this Court recognized in
Figliola,
[r]espect for the finality of a[n] . .
. administrative decision increases fairness and the integrity of . . .
administrative tribunals and the administration of justice; on the other hand,
relitigation of issues that have been previously decided in an appropriate
forum may undermine confidence in this fairness and integrity by creating
inconsistent results and unnecessarily duplicative proceedings (Toronto
(City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at
paras. 38 and 51). [para. 34]
[106]
Moreover, the principle of finality underlying
issue estoppel is directly linked to the principles of deference in the
administrative law. The application of issue estoppel recognizes that
“[p]arties should be able to rely particularly on the conclusive nature of
administrative decisions . . . since administrative regimes are designed to
facilitate the expeditious resolution of disputes” (Figliola, at
para. 27). It also acknowledges the principle of deference which underlies the
judicial review jurisprudence of this Court and the importance and values that
it attaches to administrative decisions (see, for example, Newfoundland and
Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, at para. 11). It also gives effect to the
“adequate alternative remedy” principle, which requires parties to use the
appropriate judicial review or appeal mechanism to challenge the validity or
correctness of an administrative decision, by preventing parties from
circumventing these processes to seek a different result in a new forum. The
broad exercise of the residual discretion not to apply issue estoppel in the
present case can hardly be reconciled with the importance of deference to
administrative decisions which underlies the judicial review jurisprudence of
this Court. In so doing, our colleagues deny the value and importance of
administrative adjudication, which this Court has so strongly emphasized on
many occasions.
[107]
The court’s residual discretion not to apply
issue estoppel should not be used to impose a particular model of adjudication
in a manner inconsistent with principles of deference that lie at the core of
administrative law. Where the legislature has provided a tribunal with the
requisite authority to make a decision, and that decision is judicial or
quasi-judicial in nature, it would run counter to the principles of deference
to broaden the court’s discretion in a manner that would, in most cases, permit
an unsuccessful party to circumvent judicial review and turn, instead, to the
courts for a re-adjudication of the merits. As the Ontario Court of Appeal
found in Schweneke, an overly broad application of discretion in
the administrative context would “swallow whole the rule that makes the
doctrine applicable to findings made by tribunals whose processes, although
judicial, are less elaborate than those employed in civil litigation” (para. 39).
[108]
This leads us to consider how the principles set
out in Figliola should be applied to this case.
D. Application
[109]
The thrust of Mr. Penner’s submissions on appeal
is that the police disciplinary proceedings lacked the “hallmarks of an
ordinary civil trial”. In particular, he emphasizes that he had limited rights
of participation as a public complainant, that the statutory scheme is
incompatible with the application of issue estoppel, that the hearing officer
lacked true independence, and that the standard of proof in the disciplinary
proceedings was higher than a civil trial. For these reasons, he argues, the
Court should exercise its discretion not to apply issue estoppel in this case.
[110]
Mr. Penner’s submissions are completely
inconsistent with this Court’s prior jurisprudence and the approach to issue
estoppel recently articulated by this Court in Figliola. The
Court’s residual discretion not to apply issue estoppel should be governed by
the interests of fairness in preserving the finality of litigation. It should
not be exercised in a manner that would impose a particular model of
adjudication, undermine the integrity of administrative tribunals, and deny
their decisions the deference owed to them under the jurisprudence of this
Court. Applying these principles to the case before us, there is no reason to
exercise our discretion not to apply issue estoppel.
[111]
The disciplinary hearing conducted by the
hearing officer is designed to be an independent, fair, accountable and binding
adjudicative process. It was conducted in accordance with the requirements
prescribed by the statute and principles of procedural fairness: see Police
Services Act, ss. 64(7) to (10), 69; Statutory Powers Procedure
Act, R.S.O. 1990, c. S.22. The hearing officer considered sworn
testimony and written submissions. Mr. Penner, as a party to the proceedings,
had the opportunity to lead evidence, cross-examine witnesses, and make
submissions. He had the option to retain legal counsel. Judicial oversight of
the proceedings was available under a statutory right of appeal — a right Mr.
Penner exercised in this case and which ultimately led to a review of the
hearing officer’s decision by the Divisional Court.
[112]
Thus, the hearing officer’s decision was made in
circumstances in which Mr. Penner knew the case he had to meet, had a full
opportunity to meet it, and lost. Had he won, the hearing officer’s decision
would have been no less binding.
[113]
This quid pro quo of issue estoppel, in
turn, bears directly on Mr. Penner’s argument that the purpose of the
proceedings was different and that, because the disciplinary hearing did not
permit him to seek damages, he should be permitted to pursue a civil action.
As the Court of Appeal found, the different purposes of the two proceedings is
not determinative in this case, since Mr. Penner had the opportunity to receive
an indirect financial benefit in the disciplinary hearing. Had the hearing
officer made a positive finding of police misconduct, the application of issue
estoppel would have assisted the complainant in a subsequent civil action for
damages. Essentially, in such a case, the complainant would be relieved of
having to prove liability and the civil case would proceed straight to an
assessment of damages. In other words, as the Court of Appeal noted, in the
present case, “issue estoppel works both ways” (para. 43).
[114]
Mr. Penner further relies on specific provisions
of the Police Services Act, which he states are incompatible with the
application of issue estoppel, since they specifically contemplate parallel
civil proceedings. He relies, in particular, on ss. 69(8), 69(9) and 80 (now
ss. 83(7), 83(8) and 95), which deal with statutory privilege and
confidentiality. We do not find this to be persuasive. These provisions of
the Police Services Act are designed to ensure the integrity of the
disciplinary process. They do not suggest that issue estoppel cannot apply to
bar civil proceedings. As Lange observes, where legislatures intend issue
estoppel not to apply to an administrative decision, there should be clear
language in the statute to foreclose this possibility (p. 122).
[115]
Even in cases where the wording of the statute
specifically contemplates corollary civil rights or remedies, the courts have
applied issue estoppel. For example, in Wong v. Shell Canada Ltd. (1995),
174 A.R. 287, leave to appeal refused, [1996] 3 S.C.R. xiv, the Alberta
Court of Appeal considered whether s. 9(1)(a) of the Employment Standards
Code, S.A. 1988, c. E-10.2, precluded the application of issue estoppel.
Section 9(1)(a) provided that “[n]othing in this Act affects any civil remedy
that an employee has against his employer”. The employee argued that s. 9(1)
of the Code was intended to preserve a civil action regardless of the
fact that he had sought relief under the Code and obtained a final
decision. The Court of Appeal rejected this interpretation:
While
s. 9(1)(a) does not purport to remove any common law rights, and, in fact,
seeks to preserve them, the wording does not preclude the application by the
courts of issue estoppel. The legislature has provided the employee with a
choice of forum. The employee may commence an action or may pursue remedies
under the Code. The legislation does not provide that both remedies may
be pursued by the employee in respect of the same complaint. [para. 14]
(See
also Rasanen.)
[116]
Similarly, the provisions relied upon by Mr.
Penner in this case, which contemplate civil proceedings, do not specifically
preclude the application of issue estoppel by a court.
[117]
Moreover, to interpret these provisions in a
manner that would preclude the application of issue estoppel would be contrary
to the purposes of the Police Services Act, which is designed to
increase public confidence in the provision of police services, including the
processing of complaints. Preventing the courts from applying issue estoppel
in the context of disciplinary proceedings would run counter to this purpose —
decisions would not be final or binding and would be open to relitigation and
potentially inconsistent results. This would undermine public confidence in
the complaints process and in the integrity of the administrative
decision-making process more broadly.
[118]
Mr. Penner further takes issue with the
independence of the hearing officer in this case. In particular, Mr. Penner
submits that because the Police Services Act required that the chief of
police appoint the investigator, prosecutor, and hearing officer to handle the
complaint, the disciplinary hearing process lacked an independent and unbiased
adjudicator. This issue was raised de novo on Mr. Penner’s appeal to
this Court.
[119]
The method used to appoint an adjudicator should
not provide a basis for the exercise of the court’s discretion not to apply
issue estoppel in this case.
[120]
In 2004, the Government of Ontario commissioned
a report from the Honourable Patrick J. LeSage, Q.C., to review the complaints
process under the Police Services Act (see the Honourable Patrick J. LeSage,
Report on the Police Complaints System in Ontario (2005)). The
LeSage Report was published in 2005 and made a number of recommendations
with respect to the investigation and hearing of police complaints. In the Report,
LeSage explicitly rejected concerns with respect to the independence of
investigators and adjudicators in the complaints process:
I also heard submissions advocating an
independent hearings process where the matter has arisen from a public
complaint. This would include fully independent prosecutions and fully
independent adjudication. I appreciate the demands for greater independence in
the hearings process. Indeed, there is much merit to the arguments in support
of independence. Conflicts of interest need to be avoided. It would be
inappropriate for hearings to be staffed entirely by members of the police
service who interact with each other on a daily basis. This problem is
especially acute in small police services where outside prosecutors and hearing
officers would be necessary. This is already addressed in the current
legislation by allowing chiefs of police to appoint prosecutors and hearing
officers from outside the police service. [Emphasis added; pp. 77-78.]
[121]
In short, the LeSage Report upheld the
method used to appoint investigators and adjudicators under the Police
Services Act. In fact, LeSage found that concerns with respect to
conflicts of interest and independent adjudication were already sufficiently
addressed by the very system of appointment Mr. Penner seeks to challenge in
this appeal.
[122]
In any event, the Chief of Police played no role
in the events that formed the basis of the complaints in this case. He
designated an outside prosecutor and an independent adjudicator who was a
retired superintendent from another police service. There was no challenge to
the hearing officer’s impartiality at the disciplinary hearing itself or at any
of the proceedings below. There is no evidence that the Chief of Police
interfered in any manner with the work of the adjudicator. We must add that
similar methods of appointment are quite common in labour law, as well as in
other areas of law, and are not seen as an obstacle to independent
adjudication. Tenure is not the sole marker and condition of adjudicative
independence.
[123]
Finally, Mr. Penner argues that issue estoppel
should not apply in this case since the burden of proof is different in civil
proceedings. The statutory standard of proof under the Police Services Act requires
that a finding of misconduct against a police officer be “proved on clear and
convincing evidence” (s. 64(10); now s. 84(1)). This standard is higher than
the balance of probabilities standard required in a civil trial.
[124]
Mr. Penner relies on Porter v. York (Regional
Municipality) Police, [2001] O.J. No. 5970 (QL), where the Ontario Superior
Court of Justice reasoned that because the hearing officer’s decision “was
determined by a high standard of proof and might have been different if it had
been decided based on the lower civil standard” (para. 11), issue estoppel
should not preclude a subsequent civil action.
[125]
Unlike Porter, however, the
standard of proof was immaterial to the hearing officer’s decision in this
case. The hearing officer made unambiguous findings of fact against Mr.
Penner. His findings are unequivocal: he found “no . . . evidence
whatsoever” to support Mr. Penner’s claims (A.R., at p. 114
(emphasis added)). On judicial review, the Divisional Court found that there
was no error in these factual findings and that they were supported by “an
ample evidentiary foundation” (para. 28). The burden of proof is therefore
irrelevant in this case — there is simply no evidence to support
Mr. Penner’s claims on any standard.
[126]
We see no reason to allow Mr. Penner to
circumvent the clear findings of the hearing officer and put the parties
through a duplicative proceeding, which, in this case, would inevitably yield
the same result.
[127]
We would therefore dismiss the appeal with costs
throughout.
Appeal allowed with costs throughout, LeBel, Abella
and Rothstein JJ. dissenting.
Solicitors
for the appellant: Falconer Charney, Toronto.
Solicitors
for the respondents: Blaney McMurtry, Toronto.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General
of Ontario, Toronto.
Solicitors
for the intervener the Urban Alliance on Race Relations: Stevensons,
Toronto.
Solicitors
for the intervener the Criminal Lawyers’ Association (Ontario): Sack
Goldblatt Mitchell, Toronto.
Solicitors
for the intervener the British Columbia Civil Liberties
Association: Holmes & King, Vancouver.
Solicitors
for the intervener the Canadian Police Association: Paliare, Roland,
Rosenberg, Rothstein, Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Dewart
Gleason, Toronto.