Case Comment: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19
Can issues that have already been determined by an administrative tribunal in one forum be revisited in another forum? In its earlier decision in British Columbia (Workers' Compensation Board) v. Figliola, the S.C.C. suggested that if two administrative tribunals have concurrent jurisdiction over a complaint that is largely similar in nature, a party may not be able to re-litigate the complaint in both forums. Just one year later, the S.C.C. issued its decision in Penner, which suggests that a party may be able to litigate the same (or similar) complaints in different forums, depending on the circumstances.
(For our earlier analysis of the Figliola principle, see the June 2012 issue of Perspectives for the Profession).
British Columbia (Workers' Compensation Board) v. Figliola
In Figliola, three workers received fixed compensation from the Workers' Compensation Board (WCB) for chronic pain suffered after a workplace incident. The workers appealed the decision to the WCB's review division, arguing that it was discriminatory to set fixed compensation for chronic pain. The review officer rejected this argument, finding that there was no discrimination. The workers then appealed to the Workers Compensation Appeal Tribunal. The Appeal Tribunal determined that it had no jurisdiction, due to a recent amendment to the governing legislation.
The workers did not seek judicial review of the decision of the Appeal Tribunal or the review officer. Instead, they made a complaint to the British Columbia Human Rights Commission, raising the same arguments that had previously been made to the review officer.
The Workers' Compensation Board made an application to the Commission, asking that the complaints be dismissed pursuant to a provision in the Human Rights Code that allowed the Commission to dismiss complaints that had already been "appropriately dealt with." The Tribunal denied the application, ruling the workers were entitled to a full hearing.
The S.C.C. held that the workers were not entitled to re-litigate the issues that had already been decided by the WCB review officer before a different tribunal, in this case the British Columbia Human Rights Tribunal. The Court concluded that "a litigant...is only entitled to one bite at the cherry...Duplicative litigation, potential inconsistent results, undue costs and duplicative proceedings are to be avoided."
Penner v. Niagara (Regional Police Services Board)
Just over a year later, the S.C.C. dealt with a similar issue in Penner. Notwithstanding the S.C.C.'s clear attempts to limit duplicative proceedings in Figliola, the majority of the Court in Penner appeared to come to a decision that is, at first, glance, contradictory.
The issue in Penner was whether issues determined by a police disciplinary tribunal could be relitigated in a lawsuit for damages.
Penner had been arrested for his disruptive behaviour in an Ontario courtroom. He filed a complaint of police brutality and unlawful arrest against the two officers who had arrested him.
He also filed a civil lawsuit for damages arising out of the same incident.
The police disciplinary tribunal found the arrest lawful and the use of force authorized. It dismissed the matter, which decision was upheld on appeal before the Ontario Divisional Court.
The officers then applied to have many of the claims in the lawsuit struck on the basis of "issue estoppel," arguing that the disciplinary proceedings had already conclusively established that no unlawful arrest or excessive use of force had occurred. Issue estoppel is a legal doctrine that precludes re-litigation of issues that have been determined in a prior proceeding. It is intended to protect the finality of litigation.
The issue made its way up to the S.C.C. The S.C.C. ruled that while there was no rule barring the application of issue estoppel to police disciplinary proceedings, this was not the right case for the Court to exercise its discretion to grant it.
The S.C.C. held that the circumstances easily met the requirements of issue estoppel, namely that both proceedings dealt with the same issues and parties, and that the earlier decision was a final, judicial decision. However, the Court affirmed that even where the requirements of issue estoppel are met, the Court must still exercise its discretion to determine whether it was "unjust" to strike the claim, which would effectively preclude Penner from pursuing his civil claim against the officers. The Court, by a 4-3 majority, held that it would not serve the interests of justice to apply issue estoppel in this case, and that Penner should be permitted to proceed with his civil action.
The Penner majority found a number of ways to distinguish the Figliola decision. In particular, the S.C.C. held that it would be unfair to apply issue estoppel to Penner's civil claim, since the purpose of the civil proceedings could result in monetary compensation for Penner, whereas the discipline proceedings could not directly benefit Penner in any way.
In addition, the S.C.C. held that the legislation governing the police discipline proceedings appeared to contemplate the possibility of multiple proceedings. For example, the legislation prohibited the use of documents generated in the complaint process in civil proceedings.
Further, the S.C.C. held that it would be unfair to apply the doctrine of issue estoppel to preclude Penner from proceeding with his civil lawsuit, as he could not reasonably have expected that the outcome of the discipline process would dispose of all issues concerning his allegations of misconduct.
As such, the S.C.C. declined to apply the doctrine of issue estoppel, and Penner was allowed to proceed with his civil lawsuit, notwithstanding the previous findings in the police discipline proceedings, which affirmed that the officers had acted appropriately.
What are the Practical Implications for Regulators Arising from Figliola and Penner?
As a result of Figliola, regulators who receive a complaint about a member that hinges on an issue that has already been litigated and decided in a different forum may have the option of dismissing the complaint based on the doctrine of issue estoppel if all of the elements are met.
Whether or not a regulator should do so is less clear, as a result of the S.C.C.'s subsequent decision in Penner. However, it should be borne in mind that issue estoppel is a discretionary remedy that is highly dependent on the specific facts, and the facts in Penner were very important to the S.C.C.'s ultimate decision in that case. As such, Penner does not preclude a regulator from dismissing a complaint based on the doctrine of issue estoppel, in appropriate circumstances.
If a regulator on receiving a complaint becomes aware that an issue that is central to the complaint has already been decided in another forum, the regulator may wish to consider a number of factors, including the following, in order to determine whether to proceed with the complaint process, or to dismiss the complaint:
- Has the same question already been decided in another forum? Given that regulators are looking at issues such as whether the conduct, if proven, could constitute professional misconduct, decisions from other forums may not necessarily dispose of the issues that are relevant to a regulator.
- Is the previous decision a "judicial decision"? Was the decision made by a court or an administrative tribunal with appropriate authority, such as a human rights tribunal, the Privacy Commissioner, or the Workers' Compensation Board?
- Was the previous decision "final"? Have all avenues for appeal in the previous forum been exhausted? If not, have the time limits for an appeal expired?
- Are the parties in the current complaint the same parties involved in the previous proceeding?
If the answer to any of the above questions is "no," it is not appropriate for the regulator to apply the doctrine of issue estoppel, and the regulator should proceed with the complaint process in the usual course. If the answer to all of the above questions is "yes," then the regulator should go on to consider whether it would be unjust to refuse to proceed with the complaint process in the particular circumstances. Factors that the regulator should consider include:
- Did the parties have the opportunity to participate fully in the previous proceeding?
- Were the previous proceedings deeply flawed or manifestly unfair?
- Is the remedy that is available as a result of the complaint process similar to the remedy that was available in the previous proceedings? For example, is the complainant merely seeking a declaration of misconduct in both forums? Given the unique remedies available from professional regulators, such as restrictions on a professional's ability to practice, this may be a difficult factor to make out.
- Should the parties have reasonably expected that the matter would be disposed of in the previous proceedings?
If the answers to the above questions are "yes," then it may be appropriate for a regulator to dismiss a complaint based on the doctrine of issues estoppel. If, on the other hand, the answers to the above questions are "no," then it may be unfair to dismiss the complaint and the regulator should proceed with the complaint in the usual course. Since issue estoppel is a discretionary remedy, the regulator should carefully consider the specific circumstances prior to dismissing a complaint, to determine whether the complaint should be dismissed on the basis of issue estoppel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.