When It Comes To Issue Estoppel, Discretion And Fairness Win

The Supreme Court of Canada (SCC) recently rendered a decision in Penner v Niagara (Regional Police Services Board), 2013 SCC 19, regarding the application of issue estoppel. At issue was whether it was proper to strike a claim in a civil action on the basis of a hearing officer's decision in a police disciplinary proceeding arising from the same incident.

Mr. Wayne Penner (Penner) was arrested for disruptive behaviour in an Ontario courtroom. Following the incident Penner filed a complaint against two police officers under the Police Services Act, RSO 1990, c P15 (the "PSA"). Penner also started a civil action for damages against the two police officers, their Chief of Police, and the Regional Municipality of Niagara Regional Police Services Board (collectively the "Police"), alleging, among other things, unlawful arrest and use of excessive force. Pursuant to the PSA, the Chief of Police appointed the hearing officer for the disciplinary proceedings.

The hearing officer found the officers not guilty of any misconduct and dismissed the complaint. The decision was reversed by the Ontario Civilian Commission as it found the arrest unlawful. On further appeal to the Ontario Divisional Court, the decision was reversed again as it found that the police officers did have legal authority to make the arrest, thus restoring the hearing officer's decision.

Following the Divisional Court decision, the Police applied to the Superior Court of Justice to have many of the claims in the civil action struck on the basis of issues estoppel; they argued that the disciplinary proceedings had finally resolved the issues underpinning the civil claim. The Police were successful. Penner appealed to the Ontario Court of Appeal (ONCA) arguing that it was improper to apply issue estoppel in the circumstances. Exercising its discretion in the application of issue estoppel the ONCA barred Penner's civil claim and dismissed the appeal concluding that the disciplinary hearing had finally resolved the key issues. Penner appealed to the SCC.

The Majority Decision (McLachlin, C.J., and Fish, Cromwell Karakatsanis JJ)

On the facts the preconditions for applying issues estoppel, as outlined in Danyuk v Ainsworth Technologies, 2001 SCC 44 [2001] 2 SCR 460., had been met (at page 477): First, the hearing officer's decision was judicial and the hearing fulfilled the requirements of procedural fairness. Second, the decision was final. And third, the parties to the civil action...