Sunday, April 7, 2013

Issue Estoppel, Judicial Discretion and Access to Justice

    In this two part post I wish to shed some light on what appears to me to be a growing trend - the application of the doctrine of issue estoppel and judicial discretion which has the effect of denying individuals access to our courts.  In the first post I will look at the Supreme Court of Canada's recent decision in Penner   v.  Niagara Region Police Service with a view to illustrating the ideological ridgidity which more often than not renders the rights of the majority of Ontarians illusory when it comes to asserting their rights against police defendants.  In the second post I will illustrate how the Ontario Legislature has implemented issue-estoppel-type statutory enactments to the Employment Standards Act and the Human Rights Code which have the effect of denying a significant quantity of workers access to our courts.

     In Penner   v.  Niagara Region Police Service et al the Supreme Court of Canada recently ruled that the Ontario Court of Appeal erred in law in exercising its discretion when it upheld the dismissal of Mr. Penner's action on the basis of issue estoppel arising from the dismissal of his misconduct complaint under the Police Services Act.  The Court of Appeal applied the recognized test from Danyluk   v.  Ainesworth Technologies [2001] 2 S.C.R. 462; Minott   v.  O'Shanter (1999) 42 O.R. (3d) 321 (Ont.C.A.) and determined that the Police Services Act misconduct hearing and the action involved - 1.  the same question (parties agreed that the subject decision was final) and 3. same parties and found that the lower court had properly exercised its discretion in dismissing the action based on issue estoppel.  The Court of Appeal found that the motions judge erred in law in failing to consider the question of why it was not appropropriate to not apply issue estoppel in the case and went on to deal with this issue.

     The Court of Appeal - in applying a narrow and simplistic analysis as distinct from the broad and purpose-driven analysis employed by the Supreme Court of Canada - effectively denied Mr. Penner access to a remedy in the courts.  The key difference in the approach employed by the two levels of courts lies in the level of scrutiny they each subjected the Danyluk (supra) requirements to.  Unlike the Court of Appeal, the Supreme Court of Canada took the additional step and considered the nature and purpose of each legislative scheme along with the reasonable expectations of the parties.  In applying this approach the Supreme Court of Canada found that the Court of Appeal erred in the exercise of its discretion in appplying issue estoppel to the facts of this case on two grounds.  The first is found in the following quote from the Court of Appeal judgment on the issue of Mr. Penner's financial stake in the discipline proceeding:

Financial stake in the
Disciplinary Hearing:

     "This is an important consideration weighing against applying issue estoppel, but its
strength is diminished by the potential indirect benefit to Mr. Penner from the disciplinary proceedings.  If,  for example, the hearing officer had found that the two police officers did not have reasonable and probable grounds to arrest Mr. Penner or used excessive force on him, those findings would likely have estopped the officers from asserting otherwise in Mr. Penner's civil action.  In other words, issue estoppel works both ways." 

     The Supreme Court found that this analysis was flawed since the the Police Services Act requires misconduct to be "proved on clear and convincing evidence" while Mr. Penner's civil case must be proved on the lower balance of probabilities standard.  Accordingly, it did not follow that an acquittal under the higher standard could not lead to a finding of liability on the lower civil standard in Mr. Penner's civil action.

Role of the Chief of Police:

     Surprisingly, the Supreme Court went on to identify an additional ground which was not before the Court of Appeal in support of not applying the doctrine of issue estoppel in this case.  The Court noted that under the public complaints process of the PSA at the relevant time the Chief of Police appointed the investigator, the prosecutor and the hearing officer.  The Court reasoned that there was an inherent unfairness in employing the adverse decision from a discipline hearing held in these circumstances to absolve the Chief of Police and others from civil liability.  This is what the majority said on this point:

     [66] "Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate's decision had the effect of exonerating the Chief and his police service from civil liability.  In our view, applying issue estoppel here is a serious afront to basic principles of fairness."


     Justice must always be dispensed with a fair and even hand.  Anything less is not justice at all.  The exercise of judicial discretion like justice must always be exercised with a fair and even hand.  Depriving an individual access to our courts who seeks redress against the police for civil and constitutional wrongs allegedly committed against that individual simply because an inferior tribunal with a very different statutory function, purpose and level of proof dismissed his complaint is just plain wrong - fairness must always trump finality.  I believe this is precisely what the late Mr. Justice Bora Laskin meant when he said that "law without compassion is void."


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