An individual who was arrested for disruptive behaviour in an Ontario courtroom (“Penner”) succeeded on appeal in establishing that issue estoppel should not apply to preclude his civil claims against the police officers once his Police Services Act proceedings against them had been dismissed

Administrative law – Decisions of administrative tribunals – Police Services Commission – Police – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Estoppel and res judicata – Compliance with legislation – Evidence

Penner v. Niagara (Regional Police Services Board), 2013 SCJ No. 19, 2013 SCC 19, Supreme Court of Canada, April 5, 2013, McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis J.J.

In January 2003, Penner was seated in a Provincial offences court while his wife was on trial for a traffic violation. Penner allegedly disrupted those proceedings and would not leave when asked to do so. He then resisted arrest by a police constable named Nathan Parker. Constables Parker and Koscinski forcibly removed Penner from the courtroom and, once outside the courtroom, used force and applied handcuffs. Penner was taken to a Niagara Regional Police station where he was strip searched and placed in a holding cell. During these interactions, Penner sustained a black eye, a bruised knee and other injuries. Penner was taken to hospital by police where he was examined, treated and released. He was charged with causing a disturbance, breach of probation and resisting arrest. The Crown withdrew all charges five months later.

Penner complained under the Police Services Act against Constables Parker and Koscinski, alleging unlawful arrest and unnecessary use of force. A disciplinary hearing arose out of this complaint. Sometime later, Penner also started a civil lawsuit against the Constables in the Ontario Superior Court of Justice, also naming the Police Services Board, the Chief of Police and Court Security Office as Defendants. Penner claimed damages for unlawful arrest, false imprisonment, unnecessary use of force, and unnecessary strip search, failure of other officers to prevent his mistreatment and failure to provide timely medical assistance, among other things.

The Police Services Act hearing was to determine whether alleged misconduct had been “proved on clear and convincing evidence.” The complainant in such proceedings does not receive a remedy, nor an award of costs.

The hearing took place in 2004 with Penner representing himself. He led evidence, cross-examined witnesses and made submissions on his own behalf. At hearing, Penner’s testimony was largely rejected. A conclusion was reached that Constables Parker and Koscinski had reasonable grounds to arrest Penner for causing a disturbance in a public place. The hearing officer concluded that the prosecutor had failed to provide sufficient evidence to show that Penner’s arrest was not authorized by statute. The allegation of unlawful arrest was dismissed, and the Constables were found not guilty of misconduct. The allegation of unnecessary force was similarly dismissed.

Penner appealed the decision of the hearing officer to the Ontario Civilian Commission on Police Services (the “Commission”) and took the position that there were no legal grounds for his arrest. The Commission concluded that the arrest was unlawful because there was no direction from the Justice of the Peace to the Constables that they ought to arrest Penner. There was clear and convincing evidence that the Constables were guilty of misconduct for an unlawful and unnecessary arrest and that any force used was therefore unjustified and unnecessary.

The Constables brought a further appeal to the Ontario Superior Court of Justice under the Police Services Act, and the Divisional Court held that the Commission had unreasonably ignored the findings of fact made in the first instance by the hearing officer. The Divisional Court concluded that the officers had legal authority to make the arrest and the original findings were restored.

Once the decision of the disciplinary hearing was reinstated by the Divisional Court, the Constables and other Defendants filed a motion in the civil action to have it dismissed on the basis of issue estoppel.

The motion judge found that Penner was estopped from bringing his claims because the same two questions had already been decided by the disciplinary hearing and then reinstated by the Divisional Court: the lawfulness of the arrest and the unnecessary use of force. The Judge concluded that the three preconditions for issue estoppel, as outlined in Danyluk v. Ainsworth Technologies, 2001 SCC 44, had been met: (1) the decision of the hearing officer was found to be judicial and had fulfilled the requirements of procedural fairness, (2) the decision was a final decision and (3) the same parties to the civil action were engaged in the disciplinary hearing.

The motion judge also found there were not grounds for him to exercise his discretion to not apply issue estoppel.

The Court of Appeal agreed that the three conditions for issue estoppel had been met. However, the motion judge had erred by not explaining why he was without grounds to exercise his discretion to not apply issue estoppel. The Court of Appeal acknowledged that the disciplinary hearing and the civil action had different purposes. There did not appear to be legislative intent to preclude Penner’s civil action because he had filed a public complaint under the Police Services Act. Penner had no financial stake in the disciplinary hearing.

However, the Court of Appeal concluded that the application of issue estoppel would not work an injustice and so the doctrine should apply. The overlap in terms of the issues of the reasonable and probable grounds of arrest and the excessive use of force, the fact that the disciplinary hearing had the “hallmarks of an ordinary civil trial” and the fact of Penner’s active participation in the disciplinary hearing weighed in favour of applying issue estoppel.

On further appeal to the Supreme Court of Canada, the Court held that a discretionary decision of a lower court could be reversed where the Court misdirected itself or came to a decision that was so clearly wrong as to amount to an injustice. Further, a lower court’s discretionary decision could be reversed where there was no or insufficient weight given to relevant considerations.

The Court acknowledged that relitigation of an issue would be a waste of resources. Issue estoppel had developed in order to limit relitigation. The application of issue estoppel involves balancing judicial finality with other considerations of fairness to the parties. A party may not relitigate an issue that has been finally decided in prior judicial proceedings between those same parties. Issue estoppel applies to administrative tribunal decisions. There is no public policy rule precluding the application of issue estoppel with respect to police disciplinary hearings generally. Penner argued that issue estoppel should not apply to police disciplinary hearings because then such hearings would usurp the role of the courts as guardians of the constitution and the rule of law. The Supreme Court of Canada rejected this argument. The doctrine of issue estoppel allows discretion to be exercised so that no injustice results. A case-by-case review should be made to determine whether the application of issue estoppel would be unfair or unjust.

The Court held that the three preconditions for issue estoppel were established. The Court then considered whether unfairness of applying issue estoppel arose from the unfairness of prior proceedings, and held that the prior proceedings had been fair, such that this would not preclude the application of issue estoppel. However, in looking at whether it would nonetheless be fair to use the results of the police disciplinary proceeding to preclude the subsequent civil claim, the court considered that where the purposes of two proceedings diverge significantly, applying issue estoppel may be unfair, even if the prior proceeding is conducted fairly. There must be consideration of a party’s reasonable expectations about what is at stake in the proceedings, and the different purposes of the two proceedings.

The legislation establishing the disciplinary hearing provides that documents generated during the complaint process are inadmissible in civil proceedings and that persons carrying out duties in the complaint process cannot be forced to testify in civil proceedings. In addition, persons who administer the complaint process must keep the information obtained during the process confidential. These three provisions contemplate parallel proceedings in relation to the same subject matter. Thus, the parties have a reasonable expectation that parallel proceedings are not foreclosed when a member of the public files a complaint.

The purposes of a police disciplinary proceeding and a civil action are different. The police disciplinary process involves decisions about whether the officer’s employer will impose employment-related sanctions. There is no remedy nor costs award for a complainant. A civil aciton, by contrast, is a forum where a party who has suffered a wrong can obtain compensation. In Porter v. York (Regional Municipality) Police [2001] O.J. No. 5970, the Court held that an acquittal of an officer at a disciplinary hearing does not give rise to issue estoppel in relation to the same issues in a subsequent civil action.

Because the Police Services Act requires that misconduct by a police officer must be proved on clear and convincing evidence, such a conclusion might preclude relitigation of the liability issue in a civil action on the balance of probabilities, which is a lower standard of proof. However, if an officer is acquitted at the disciplinary hearing, it does not necessarily mean the same allegations cannot be established on the civil balance of probabilities. Therefore, a complainant would not expect issue estoppel to apply if officers were acquitted at the disciplinary hearing.

One downside of issue estoppel is the risk of adding to the length and complexity of administrative proceedings by attaching undue weight to the results. However, there is a risk that potential complainants will not come forward with public complaints if that might be seen to prejudice their potential civil actions.

Further, applying issue estoppel against Penner in this instance would have the effect of permitting the Chief of Police to become the judge of his own case. That is, his designate’s decision would have the effect of exonerating him and his police service from civil liability. Such an application of issue estoppel would be a “serious affront to basic principles of fairness.”

The appeal was allowed with costs to Penner.

The dissenting justices would have dismissed the appeal, finding no reason to allow Penner to circumvent the findings of the hearing officer in what they considered a duplicative proceeding.

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