A Fair Fight: Issue Estoppel And Parallel Proceedings

Litigation has to be fair to both sides of a dispute. Finality is an important aspect of that fairness. Where parallel proceedings have differences in process, procedure, or purpose, is it fair to allow the same parties to litigate the same issues? Or does the fairness of finality take precedence over considerations of process and purpose?

In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court of Canada considered when a civil court should bar claims on the basis that the issues in dispute were finally disposed of in a prior administrative proceeding. A 4-3 majority of the Court affirmed the flexible test for issue estoppel, set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, and its requirement that the judge exercise discretion not to apply the doctrine if it would result in unfairness or an unjust result.

Background

Mr. Penner was arrested for disruptive behaviour in an Ontario courtroom. Shortly thereafter he initiated two proceedings alleging unlawful arrest and use of unnecessary force.

Mr. Penner filed a public complaint against the two arresting officers under the Police Services Act, R.S.O. 1990, c. P.15 ("PSA"). He also brought a civil action for damages in the Superior Court of Justice in which he named the same officers, their Chief of Police, and the Regional Municipality of Niagara Regional Police Services Board.

The Administrative Proceeding

The Chief of Police referred Mr. Penner's PSA complaint to a disciplinary hearing, appointing a retired OPP superintendent to conduct the hearing on his behalf. At the hearing, both officers were found not guilty of misconduct. Mr. Penner, a meaningful participant at the hearing, successfully appealed to the Ontario Civilian Commission on Police Services. On further appeal by the constables, the Divisional Court reinstated the decision from the disciplinary hearing that there had been no misconduct.

The Civil Action

After the Divisional Court restored the decision from the disciplinary hearing, the defendants in the civil action moved to dismiss Mr. Penner's claim on the basis of issue estoppel, arguing that the disciplinary proceeding had finally resolved key issues grounding the civil claim.

The test for issue estoppel was originally set out in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 and involves asking:

1. whether the same question has been decided;

2. whether the decision said to create the estoppel is final; and

3. whether...