Canada: Did the SCC Flip Flop on Finality?

Last Updated: September 25 2013
Article by Katrina Haymond and Lily Nguyen

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 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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions