The Odds of Discretion: Issue Estoppel in Disciplinary Police Hearings in Penner v Niagara
Last week, the Court of Appeal for Ontario held that findings made in a disciplinary police hearing can preclude the re-litigation of the same issue in a civil trial. In Penner v Niagara (Police Services Board), 2010 ONCA 616, Wayne Penner discovered that issue estoppel can apply to a seemingly dissimilar proceeding.
Background and Facts
In 2003, Mr. Penner attended a trial in support of his wife before a justice of the peace in St. Catharines, Ontario. After causing a disturbance in the courtroom, Mr. Penner was subsequently arrested and taken in to the police station. After, Mr. Penner lodged a formal complaint under the Police Services Act, RSO 1990, c P.15 [Police Services Act] alleging misconduct by the two officers who arrested him, Officers Parker and Koscinski. His complaint alleged that he was unlawfully arrested and that the officers used unnecessary force during and after his arrest. To substantiate these claims, Mr. Penner provided photographs of himself taken after the arrest in which his face was bruised and scraped, his eye was blackened, and both his elbow and left knee were bruised and scraped.
At the disciplinary hearing, Mr. Penner, as complainant, had standing and was able to give oral evidence, cross-examine witnesses and make written submissions. However, the hearing officer dismissed the complaint, finding that the officers had reasonable grounds to arrest Mr. Penner and had not used unnecessary force. Mr. Penner appealed this decision to the Ontario Civilian Commission on Police Services, who held the arrest was unlawful and that any force used was unjustified. The police officers applied for judicial review of the Commission’s decision. The case at hand appealed the Divisional Court’s upholding of the original hearing officer’s findings.
Let us Roll the Dice …
The main issue on appeal concerned issue estoppel. Issue estoppel prevents the further litigation of an issue which a court or tribunal has already decided in a previous proceeding. Based on the theory that litigation should (a) have an end and (b) not “harass” a same party twice for the same reason, the doctrine is well explained in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2),  1 AC 853.
The respondents in this case (the police) sought to estop Mr. Penner from litigating a civil action which, they claim, was identical to the issue argued during the police disciplinary hearing. In order for an issue to be estopped, it must be shown that:
(i) The same question was decided in the disciplinary proceedings;
(ii) The judicial decision said to create the estoppel is final; and
(iii) The parties, or their privies, to the judicial decision are the same persons as the parties, or their privies, to the proceedings in which the estoppel is raised.
However, even if these three factors are met, the court may use discretion to disallow issue estoppel in the interests in justice (see Danyluk v Ainsworth Technologies Inc,  2 SCR 460).
Estop-this, Do Not Pass Go, Do Not Collect $200
Laskin J.A., writing for an unanimous bench, applied the test, supra, and held that the respondents had adequately shown the three factors to be fulfilled. He then exercised his discretion to determine whether estopping Mr. Penner’s civil litigation suit would be unfair or unjust.
The court found two factors in favour of Mr. Penner:
1. The two proceedings have fundamentally different purposes. The police misconduct hearing was intended to potentially punish police officers, not compensate the victim.
2. Mr. Penner had no financial stake in the disciplinary proceedings.
However, the court also outlined four factors which work against Mr. Penner:
1. Any issue surrounding the legal authority of the initial hearing officer was resolved by the Divisional Court.
2. The proceedings had the hallmarks of a ordinary civil trial.
3. Mr. Penner actively participated in the disciplinary hearing.
4. Mr. Penner exercised a right to appeal.
By Laskin J.A.’s own admission, the answer to whether proceedings should be halted “requires a qualitative assessment of the relevant considerations, not a mathematical calculation … the court must examine the importance and strength of each consideration.”
Here, Everyone Loses
I must respectfully disagree with the Court’s decision in this case as a direct consequence of the above quote.
I am troubled by the lack of emphasis the Court put on the fact that the two hearings have diametrically different purposes. A police disciplinary hearing is meant to punish rogue police officers, not to address the harm that may have befallen a victim. Indeed, the Police Services Act does not provide any form of compensation for a complainant, even if that complaint has led to a finding of misconduct. How can it be that a complainant is denied their day in court by way of issue estoppel when the fundamental purpose of a hearing is not in their own personal interest?
In discussing this, Laskin J.A. addressed Mr. Penner’s submission that the standard of proof is higher (“clear and convincing evidence”) in a disciplinary hearing than it would be in a civil trial (where it would be a balance of probabilities). To dispose of Mr. Penner’s submission, the Court referenced the hearing officer’s remark that “he was unable to see any evidence whatsoever” substantiating Mr. Penner’s claims. This is ludicrous. A civil trial would allow either a civil jury or a brand new judge to examine the case from a different perspective, thereby altering the nature of the proceedings significantly. The remarks quoted in question were made by a retired police superintendant (the hearing officer) and should not carry enough weight to preclude a litigant from receiving the opportunity to litigate.
To conclude, I find it disheartening that those alleging police misconduct must now tiptoe carefully, knowing that a complaint under the Police Services Act is their only option for recourse. By all means, disrupting judicial proceedings is unwelcome and deserves punishment. However, the police must maintain the dignified level of service we expect from them. The Court of Appeal failed to properly emphasize the purpose of a proceeding, as it the purpose which subconsciously directs and engages the conduct and strategy of all parties involved.