Police liability is a unique area of law for its breadth. Unlike many other fields that may focus on one or two particular narrow legal issue(s), cases involving police liability are impacted by not only tort, but also by administrative, criminal, and constitutional law considerations. All of these fields can overlap. For example, the disposition in the criminal context may determine whether that accused has a viable civil claim in negligent investigation or malicious prosecution.1 Both the Court of Appeal for Ontario and the Supreme Court of Canada recently released decisions that touch on the interrelationship between these areas of law in the context of police liability.
In Penner v. Niagara (Regional Police Services Board),  S.C.J. No. 19, the Supreme Court of Canada considered the impact police discipline proceedings may have on subsequent civil actions against police. In Wellington v. Ontario,  O.J. No. 1615 (C.A.), the Court of Appeal for Ontario defined the limits of the duty of care owed by police and the Special Investigations Unit to victims of crime and their families. Most recently, in Wood v. Schaeffer,  S.C.J. No. 71, the Supreme Court of Canada considered the right of police officers to consult with counsel prior to preparing their duty book notes for investigation by the Special Investigations Unit.
II. Penner v. Niagara (Regional Police Services Board)
In Penner v. Niagara (Regional Police Services Board), the Supreme Court of Canada considered whether police discipline proceedings initiated under Part V of the Police Services Act could bar subsequent civil actions against police with the doctrine of issue estoppel. In a 4-3 decision, a deeply divided Court determined that the application of issue estoppel would work an injustice to Mr. Penner and allowed his civil action to proceed. The majority took a step back from analyzing the unique circumstances of Mr. Penner's case in favour of a more general analysis of the characteristics of the tribunal proceedings below. In doing so, the majority adopted a more "nuanced" approach to fairness and determined that it would be unfair to Mr. Penner to apply issue estoppel in the circumstances, even though the police discipline proceeding below was conducted fairly. A strong dissent co-authored by Justices LeBel and Abella placed the focus on fairness of finality to litigation and analyzed the specific circumstances of Mr. Penner's case through that lens. The dissenting Justices favoured dismissing Mr. Penner's appeal, noting that the hearing officer made clear findings against Mr. Penner. The dissent ultimately opined that allowing the action to proceed would result in a duplicative proceeding that "would inevitably yield the same result."
Underlying Facts and Judicial Treatment
The facts in Penner are important to understand the context in which the court reached its decision. In September 2002, Mr. Penner attended his wife's trial over a minor traffic infraction. He sat in the back of the courtroom wearing sunglasses, chewing gum, and disrupting proceedings with a running commentary. The presiding judge asked Mr. Penner to stop. He did not. The court officer then asked him to stop. He did not. When his behavior became more disruptive and defiant, he was placed under arrest and was removed from the courtroom. He resisted the arrest and a struggle ensued.
Following his arrest, Mr. Penner filed a complaint under the Police Services Act and started a civil action against the arresting officers. In both cases, Mr. Penner claimed that he was the victim of excessive force, unlawful arrest, false imprisonment, and malicious prosecution. The parties agreed to await the outcome of the discipline proceeding before continuing with the litigation.
The discipline hearing spanned a number of days and included evidence from 13 witnesses, including several independent eyewitnesses. There were 32 exhibits, including audio and video recordings. Legal arguments were made by all parties, including Mr. Penner. Upon hearing all the evidence and submissions, the hearing officer cleared the officers of any wrongdoing. In the process, significant credibility findings were made unflattering to Mr. Penner.
Mr. Penner appealed the hearing result to the Ontario Civilian Commission on Police Services, where the presiding members concluded that the officers did not have the authority to arrest Mr. Penner inside the courtroom. Absent this authority, any use of force was deemed excessive. Judicial review to the Divisional Court on this discrete point of law was successful. The three-judge panel unanimously found that the officers had the jurisdiction to arrest Mr. Penner in the courtroom and affirmed the hearing officer's finding that there was no misconduct. The Divisional Court's decision was not appealed.
With the police discipline proceedings completed in their favour, the officers brought a Rule 21 motion to dismiss the civil action on the basis that all the issues had been decided by the hearing officer and affirmed by the Divisional Court. The motion judge applied the two part test for the application of issue estoppel. In the first part, the motion judge held that the three preconditions to the application of issue estoppel were met: the same question was considered in both the police discipline hearing and the civil action, the same parties were involved in both cases, and the conclusion of the police discipline hearing was final. The motion judge also found that the second part of the test, whether the application of issue estoppel would not work an injustice on the facts of this particular case, was met. The civil action was dismissed. Mr. Penner appealed.
The Court of Appeal for Ontario also held that the three preconditions of issue estoppel were met but determined that the motion judge erred by failing to perform an analysis of whether the application of issue estoppel would work an injustice. However, upon performing its own analysis, the Court determined that the application of issue estoppel would not work an injustice. The appeal was dismissed. Again, Mr. Penner appealed.
The sole issue before the Supreme Court of Canada was whether the Court of Appeal properly exercised its discretion to apply issue estoppel. In a sharply split decision, the Court allowed the appeal, holding that it would be unfair to apply the decision from the police discipline proceeding to the subsequent civil action.
The Majority Decision
A majority of four judges led by Justices Karakatsanis and Cromwell agreed that the three preconditions to issue estoppel were met. At issue was the manner in which the discretionary analysis was performed in deciding whether the application of issue estoppel would work an injustice. Most of the factors commonly considered in exercising this discretion focused on the fairness of the prior proceeding: whether there were procedural safeguards, the availability of an appeal, the expertise of the hearing officer, and the procedural fairness afforded the complainant/plaintiff. There was no question that the police discipline proceeding was conducted fairly. However, according to the majority, it is not enough to look at whether the prior proceedings were fair. Courts must now also undertake the "much more nuanced enquiry" of looking at whether it is fair to use the results of the prior proceedings to bar the subsequent action. Even if the prior proceeding was conducted fairly, it may still be unfair to apply prior results to the subsequent proceeding. According to the majority, this can occur where there is a significant difference between the purposes, processes, or stakes involved in the two proceedings. The Court of Appeal, according to the majority, erred in failing to perform this analysis.
In undertaking their own fairness analysis, the majority looked at Mr. Penner's reasonable expectations as they were shaped by the nature of the police discipline proceeding. First, it was noted that the Police Services Act did not expressly foreclose the possibility of a civil action co-existing with the police discipline hearing. Second, the majority noted that Mr. Penner had no remedy available to him from the police disciplinary hearing, which related exclusively to employment-related discipline. Third, the majority noted that the prosecution in a police discipline proceeding had a higher burden of proof, which did not necessarily mean that Mr. Penner would not meet the lower burden in the civil action. Based on this, it was concluded that Mr. Penner could not have reasonably expected that issue estoppel would be applied in this case.
In addition to reasonable expectations, the majority cited general policy concerns applicable to all administrative tribunals as another reason not to apply issue estoppel. They were weary of the risk that the police discipline proceeding would become a proxy for the subsequent civil action by placing undue weight on the hearing results. This risked adding complexity and length to the tribunal's hearing.
Lastly, the majority was troubled by the structure of police discipline hearings. Under Part V of the Police Services Act, the Chief of Police (or his/her designate) had the official role of appointing an investigator, prosecutor, and adjudicator. Although previous case law suggested this was an acceptable system, the majority called this a "serious affront to basic principles of fairness". The concern was that the Chief of Police could potentially be adjudicating a civil action in which he/she may be a named Defendant through the police discipline hearing. Of note, Mr. Penner did not challenge this or raise any procedural fairness/natural justice concerns or issues of bias during the administrative hearing, or any of the appeals of the administrative decision. Nor did he raise any such issues on the Rule 21 motion or on his appeal to the Court of Appeal. The first time this issue was raised was at the ultimate appeal to the Supreme Court of Canada.
A sharp dissent was co-authored by Justices LeBel and Abella in favour of applying issue estoppel. The theme of the dissenting reasons was the preservation of finality between parties through the application of issue estoppel.
According to Justices LeBel and Abella, the majority adopted an approach to issue estoppel that was expressly rejected by the Supreme Court of Canada a few years prior in British Columbia (Workers' Compensation Board) v. Figliola.2 According to Figliola, the goal of issue estoppel was not to balance fairness and finality as competing and distinct values but to preserve the fairness of finality. The Court in that case determined that the discretionary analysis of whether to apply issue estoppel "should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of ... relitigation." Guided by this framework as established by the Supreme Court's prior decision on issue estoppel, the dissenting judges responded to the majority decision then applied their own discretionary analysis that would have lead to the dismissal of Mr. Penner's appeal.
The dissent held that the discretionary analysis proposed by the majority would have negative consequences for administrative tribunals in general. First, administrative tribunals by their very nature have different purposes, processes, and procedures from courts. It could almost always be said that a tribunal has a different purpose than a court. Placing these differences at the forefront of a fairness analysis will almost always lead to the exclusion of the application of issue estoppel when the earlier decision comes from a tribunal. Second, the majority decision undermines the integrity of administrative tribunals. Permitting the application of issue estoppel with administrative decisions in appropriate circumstances furthers the policy objectives of issue estoppel, including the avoidance of duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings. The third consequence of the majority's approach is that it denies administrative tribunals the deference to which they are entitled with judicial review. Now, if a party is displeased with a particular administrative proceeding, they may simply turn to a new forum, the court system, rather than seek the appropriate remedies through judicial review. To use Justice Binnie's words from the Danyluk v. Ainsworth Technologies Inc.3 decision, they would be entitled to a second bite at the cherry.
The dissent next responded to each of the majority's concerns in the fairness analysis and concluded that the operation of issue estoppel would not work an injustice on the unique facts of this case. First, it was noted that Mr. Penner's hearing was conducted in an independent, fair, accountable, and binding process as designed by the Police Services Act and the Statutory Powers Procedure Act. Second, the dissent agreed with the Court of Appeal that Mr. Penner derived a financial benefit from the discipline proceeding. Had the hearing officer made a finding of police misconduct, the practical result would have been that the civil action amounted to an assessment of damages. Third, the dissent noted that the Police Services Act did not bar the application of issue estoppel to subsequent civil actions like other statutes have done. Preventing the application of issue estoppel meant that the tribunal's decisions were no longer final or binding, but open to re-litigation if the complainant was unhappy with the result. Fourth, the dissent determined that the method used to appoint the hearing officer is not a consideration to defeat the application of issue estoppel in this case because any concerns of partiality and conflict of interest had already been addressed by the legislation setting out the appointment process. Lastly, it was noted that the differing burdens of proof between the two proceedings were immaterial in this case in light of the findings that there was "no...evidence whatsoever" to support Mr. Penner's claims. In other words, it did not matter which burden of proof was applied; Mr. Penner would not succeed. As a result, the dissent saw "no reason to circumvent the clear findings of the hearing officer and put the parties through a duplicative proceeding, which, in this case, would inevitably yield the same result."
1 See, for example: Romanic v. Johnson,  O.J. No. 2642 (S.C.J.); aff'd  O.J. No. 229 (C.A.)
2  S.C.J. No. 52
3  S.C.R. 460