Penner v. Police Services Bd. (2013), 304 O.A.C. 106 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2013] O.A.C. TBEd. AP.019
Wayne Penner (appellant) v. Regional Municipality of Niagara 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 (intervenors)
(33959; 2013 SCC 19; 2013 CSC 19)
Indexed As: Penner v. Niagara Regional Police Services Board et al.
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis, JJ.
April 5, 2013.
Summary:
Penner was arrested for causing a disturbance during a trial. He filed a civil action against the officers involved and a complaint under the Police Services Act, claiming unlawful arrest and excessive force. A hearing officer dismissed the complaint. After Penner’s partially successful first level appeal, the Divisional Court restored the hearing officer’s decision (see (2008), 232 O.A.C. 317). In the civil action, the officers moved to strike Penner’s allegations of unlawful arrest, excessive force, false imprisonment, and malicious prosecution, based on issue estoppel.
The Ontario Superior Court, in a judgment reported [2009] O.T.C. Uned. T48, granted the motion. Penner appealed.
The Ontario Court of Appeal, in a judgment reported (2010), 267 O.A.C. 259, dismissed the appeal. The requirements for issue estoppel were present and there was no error in exercising the court’s discretion to apply issue estoppel. Penner appealed.
The Supreme Court of Canada, LeBel, Abella and Rothstein, JJ., dissenting, allowed the appeal. The court stated 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 … 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 [Penner] to apply issue estoppel to bar his civil action”.
Estoppel – Topic 381
Estoppel by record (res judicata) – Res judicata as a bar to subsequent proceedings – In civil proceedings – [See
Estoppel – Topic 386
].
Estoppel – Topic 386
Estoppel by record (res judicata) – Res judicata as a bar to subsequent proceedings – Issues decided in prior proceedings – Penner filed a civil action for damages against police and also a complaint under the Police Services Act, alledging unlawful arrest and the use of excessive force – The complaint was dismissed in disciplinary proceedings – Conceding that the requirements for issue estoppel were present, the issue was whether the court should exercise its discretion to not apply issue estoppel to the issues of unlawful arrest and excessive force in the civil action – The Supreme Court of Canada held that the Court of Appeal erred in exercising its discretion to apply issue estoppel – There was no public policy rule precluding the application of issue estoppel to police disciplinary hearings based upon judicial oversight of police accountability – The reasonable expectation of the parties was that the fact findings in the disciplinary hearing did not preclude determination of the same issues in the civil action, which had a lower standard of proof – The issue was whether applying issue estoppel would be unjust or unfair – Unfairness could arise from either the unfairness of the administrative proceedings or unfairness in using the results of a fair administrative proceedings to preclude a civil claim – Nothing in the legislation gave rise to a reasonable expectation that a disciplinary hearing would conclusively determine Penner’s rights in a civil action – The two proceedings had different purposes – The parties would not reasonably believe that a disciplinary proceeding, in which Penner had no personal stake, could preclude his right to significant damages in a civil action – The court stated that “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” – Further, “applying issue estoppel against [Penner] had the effect of permitting the Chief of Police to become the judge of his own cause, with the result that his designate’s decision had the effect of exonerating the Chief and his police service from civil liability. … applying issue estoppel here is a serious affront to basic principles of fairness.” – See paragraphs 1 to 66.
Estoppel – Topic 388
Estoppel by record (res judicata) – Res judicata as a bar to subsequent proceedings – Decisions of administrative tribunals – [See
Estoppel – Topic 386
].
Estoppel – Topic 398
Estoppel by record (res judicata) – Res judicata as a bar to subsequent proceedings – Exceptions – Special circumstances – [See
Estoppel – Topic 386
].
Cases Noticed:
Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, appld. [para. 19].
Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 27].
Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 27].
Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 30].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 31].
Sharma v. Waterloo Regional Police Service (2006), 213 O.A.C. 371 (Div. Ct.), refd to. [para. 33].
Minott v. O’Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), refd to. [para. 37].
Schweneke v. Ontario (Minister of Education) et al. (2000), 130 O.A.C. 93; 47 O.R.(3d) 97 (C.A.), refd to. [para. 42].
British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 107 B.C.A.C. 191; 174 W.A.C. 191; 50 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 44].
Burchill v. Yukon Territory (Commissioner) (2002), 165 B.C.A.C. 295; 270 W.A.C. 295; 2002 YKCA 4, refd to. [para. 46].
Porter v. York Regional Police et al., [2001] O.T.C. Uned. 567 (Sup. Ct.), refd to. [para. 57].
Workers’ Compensation Board (B.C.) v. Figliola – see Workers’ Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.
Workers’ Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 75].
Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 76].
Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 76].
Canada (Canadian Human Rights Commission) v. Canada (Attorney General) – see Canada (Attorney General) v. Mowat.
Carl-Zeiss-Stiftung v. Rayner & Keeler: Rayner & Keeler v. Courts, [1967] 1 A.C. 853 (H.L.), refd to. [para. 78].
Parker et al. v. Niagara Regional Police Service et al. (2008), 232 O.A.C. 317 (C.A.), refd to. [para. 84].
EnerNorth Industries (Bankrupt), Re, (2009), 254 O.A.C. 235; 55 C.B.R.(5th) 1; 96 O.R.(3d) 1; 2009 ONCA 536, refd to. [para. 89].
Tsaoussis v. Baetz (1998), 112 O.A.C. 78; 41 O.R.(3d) 257 (C.A.), refd to. [para. 90].
Revane v. Homersham (2006), 220 B.C.A.C. 292; 362 W.A.C. 292; 53 B.C.L.R.(4th) 76; 2006 BCCA 8, refd to. [para. 91].
Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 92].
Boucher v. Stelco Inc. – see Bourdon et al. v. Stelco Inc.
Bourdon et al. v. Stelco Inc., [2005] 3 S.C.R. 279; 341 N.R. 207; 2005 SCC 64, refd to. [para. 97].
Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 17 O.R.(3d) 267 (C.A.), refd to. [para. 102].
Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 106].
Wong v. Shell Canada Ltd. (1995), 174 A.R. 287; 102 W.A.C. 287 (C.A.), leave to appeal denied [1996] 3 S.C.R. xiv; 206 N.R. 316, refd to. [para. 115].
Authors and Works Noticed:
Lange, Donald J., The Doctrine of Res Judicata in Canada (3rd Ed. 2010), pp. 4 to 7 [para. 88].
Lesage, Patrick J., Report on the Police Complaints System in Ontario (2005), pp. 77, 78 [paras. 33, 120].
Spencer-Bower, George S., Turner, Alexander Kingcome, and Handley, K.R., The Doctrine of Res Judicata (4th Ed. 2009), p. 4 [para. 88].
Counsel:
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.
Solicitors of Record:
Falconer Charney, Toronto, Ontario, for the appellant;
Blaney McMurtry, Toronto, Ontario, for the respondents;
Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;
Stevensons, Toronto, Ontario, for the intervener, the Urban Alliance on Race Relations;
Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Criminal Lawyers’ Association (Ontario);
Holmes & King, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;
Paliare, Roland, Rosenberg, Rothstein, Toronto, Ontario, for the intervener, the Canadian Police Association;
Dewart Gleason, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association.
This appeal was heard on January 11, 2012, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis, JJ., of the Supreme Court of Canada.
On April 5, 2013, the judgment of the Court was delivered in both official languages and the following opinions were filed:
Cromwell and Karakatsanis, JJ. (McLachlin, C.J.C., and Fish, J., concurring) – see paragraphs 1 to 72;
LeBel and Abella, JJ. (Rothstein, J., concurring), dissenting – see paragraphs 73 to 127.
