Administrative Decision-makers and the Ordinary Courts

What happens when administrative decisions, or decision-making processes, come into contact with the ordinary civil process? I will discuss two important recent Canadian decisions in this post: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (Supreme Court of Canada), and Guay c. Gesca ltée, 2013 QCCA 343 (Quebec Court of Appeal). In a separate post I will address whether Penner is inconsistent — as the dissenters in that case allege — with a previous decision of the Supreme Court of Canada, British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52.

Penner is a case about the application of the doctrine of issue estoppel to administrative decisions: if an issue has been addressed in administrative proceedings, is a court subsequently precluded from revisiting it? Despite the apparent simplicity of the question, the judges of the Supreme Court of Canada split 4-3.

Mr. Penner was arrested in a courtroom for disruptive behaviour and resisting arrest during the trial of his spouse. The charges against him were ultimately dropped. He subsequently made a complaint under the Police Services Act, alleging unlawful or unnecessary arrest and use of unnecessary force, and also initiated a civil action for damages. After a round of appeals terminating in the Ontario Divisional Court, the complaint under the PSA was dismissed.

The respondents to the civil action then moved to dismiss Mr. Penner’s lawsuit on the basis of issue estoppel, claiming that all relevant issues had been conclusively decided in the disciplinary proceedings. As the Supreme Court of Canada unanimously accepted, the three pre-conditions for application of issue estoppel were satisfied — same question, final decision on the question, and same parties.

But the presence of the three pre-conditions for issue estoppel is not determinative. As explained in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 a court retains discretion, exercisable on the basis of fairness, to refuse to estop an issue based on prior administrative proceedings. In Penner, the majority laid out the general principles as follows:

[40]                            If the prior proceedings were unfair to a party, it will likely compound the unfairness to hold that party to its results for the purposes of a subsequent proceeding.  For example, in Danyluk, the prior administrative decision resulted from a process in which Ms. Danyluk had not received notice of the other party’s allegations or been given a chance to respond to them.
[42]                          The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings.  Fairness, in this second sense, is a much more nuanced enquiry.  On the one hand, a party is expected to raise all appropriate issues and is not permitted multiple opportunities to obtain a favourable judicial determination.  Finality is important both to the parties and to the judicial system.  However, even if the prior proceeding was conducted fairly and properly having regard to its purpose, injustice may arise from using the results to preclude the subsequent proceedings.  This may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings.  We recognize that there will always be differences in purpose, process and stakes between administrative and court proceedings.  In order to establish unfairness in the second sense we have described, such differences must be significant and assessed in light of this Court’s recognition that finality is an objective that is also important in the administrative law context. 

On this exercise of discretion, the majority and minority parted ways.

For the majority, the purposes of the police disciplinary proceedings and the civil action were sufficiently divergent that it would have been unfair to estop Mr. Penner’s civil action. In addition, the majority had concerns about the fairness of the process used to appoint the investigator: the Chief of Police exercised the appointment power. Because the statutory scheme was clear, there was no basis to attack the existence or exercise of the appointment power, but it did provide the majority with another reason to refuse to estop Mr. Penner’s civil action:

[70]                          Given the legislative scheme and the widely divergent purposes and financial stakes in the two proceedings, the parties could not reasonably have contemplated that the acquittal of the officers at the disciplinary hearing would determine the outcome of Mr. Penner’s civil action.  These are important considerations and the Court of Appeal did not take them into account in assessing the weight of other factors, such as Mr. Penner’s status as a party and the procedural protections afforded by the administrative process.  Further, the application of issue estoppel had the effect of using the decision of the Chief of Police’s designate to exonerate the Chief in the civil claim.

This seems correct to me. In particular, the purposes of the two proceedings seem entirely divergent. Police disciplinary proceedings are a means for the community at large to hold police officers to account. Civil actions are a means for individuals who are victims of police abuses to be made whole for damages they suffered as individuals. There is a significant divergence, in my view, between the collective ends of police disciplinary proceedings and the individual ends of civil actions. If this is so, it would be very strange for police disciplinary proceedings to estop civil actions.

Relying heavily on legislative intent, the majority explained the divergence as follows:

[47]                          Thus, the text and purpose of the legislative scheme shape the parties’ reasonable expectations in relation to the scope and effect of the administrative proceedings.  They guide how and to what extent the parties participate in the process.  Where the legislative scheme contemplates multiple proceedings and the purposes of those proceedings are widely divergent, the application of the doctrine in such circumstances might not only upset the parties’ legitimate and reasonable expectations but may also undermine the efficacy and policy goals of the administrative proceedings by either encouraging more formality and protraction or even discouraging access to the administrative proceedings altogether.

I think this is an altogether more promising approach than one based on a multi-factor discretion. It seems to me that the bottom line in these cases should be whether the legislation envisages the administrative process as the exclusive venue for the treatment of a given complaint. This is a question of statutory interpretation, rather than one of an exercise of discretion based on all the facts of the case.

However, the majority rejected the suggestion, based on the alleged unfairness of blocking civil actions for damages against the police, that special rules should apply to police disciplinary proceedings:

[35]                          We are not persuaded that it is either necessary or desirable to create a rule of public policy excluding police disciplinary hearings from the application of issue estoppel.  The doctrine of issue estoppel allows for the exercise of discretion to ensure that no injustice results; it calls for a case-by-case review of the circumstances to determine whether its application would be unfair or unjust.

Given its reliance on legislative intent, the majority may have been to quick to reject the categorical argument made on behalf of Mr. Penner. Excluding discretion from the issue estoppel analysis does not necessarily exclude it entirely. If there are concerns that vexatious litigants will attempt to busybody police officers or others into submission by using multiple proceedings, there are other weapons in the judicial armoury that can be employed: abuse of process is one, designation as a vexatious litigant another. 

The minority disagreed with each component of the majority’s reasoning, but the core of its disagreement is found in the following passage:

[107]                     The court’s residual discretion not to apply issue estoppel should not be used to impose a particular model of adjudication in a manner inconsistent with principles of deference that lie at the core of administrative law.  Where the legislature has provided a tribunal with the requisite authority to make a decision, and that decision is judicial or quasi-judicial in nature, it would run counter to the principles of deference to broaden the court’s discretion in a manner that would, in most cases, permit an unsuccessful party to circumvent judicial review and turn, instead, to the courts for a re-adjudication of the merits.

I certainly don’t think the minority has the better of the argument here. To allege that deference is undermined by exercises of discretion not to apply issue estoppel is to make a category error. Deference is about the way in which a court treats an administrative decision, primarily on judicial review but also in other contexts, where the legitimacy of the decision is in question. Issue estoppel is about the finality of administrative decisions.

Moreover, finality of administrative decisions can only be assessed by reference to the ends that administrative decisions serve. Here, the finality of the decision for the purposes of the disciplinary proceedings was never in doubt. If the legitimacy of the decision was called into question in the civil action, its legitimacy would fall to be assessed on an appropriately deferential standard.

Finally, applying issue estoppel in a situation such as this carries a risk of judicializing the administrative process. As the majority explained, if Mr. Penner knew that the police disciplinary proceedings were his only shot at administrative justice, he would presumably have insisted on all of his procedural rights (see paras. 62-63). The same applies to other administrative proceedings: one would be best advised to arrive fully lawyered up if an administrative process is to be final and conclusive of all issues raised. This would be to the detriment of speed, efficiency and non-confrontation in administrative decision-making.

Reliance on legislative intent was also evident in Guay. Here, the Barreau du Quebec went to the superior court to seek freezing orders in respect of accounts held by a lawyer who was under investigation. They also asked the superior court for a publication ban.

The question on appeal was whether the analytical framework established by the Supreme Court of Canada in Dagenais and Mentuck applied, or whether a “Wigmore balancing” exercise would be more appropriate. The Dagenais/Mentuck framework favours freedom of expression and open courts; a balancing approach favours the non-disclosure of information if it would be in the public interest to maintain confidentiality. In arguing for the balancing approach, the Barreau relied on its unique mandate of protection of the public and the significant regulatory powers it has been granted.

In terms of legislative intent, St-Pierre J.A. recognized that the Barreau possesses significant powers to assure confidentiality. However, once it addresses itself to the ordinary courts, it no longer benefits from a special position accorded by legislation and must be treated by reference to same rules as ordinary persons (see paras. 85-86). Thus the Barreau was not entitled to any special treatment from the ordinary courts. As soon as it addressed itself to the superior court, the principle of open justice applied:

[94]        Afin d’accomplir sa mission de protéger le public, le Syndic peut et doit pouvoir faire appel aux tribunaux de droit commun. S’il lui faut révéler des renseignements recueillis au cours de son enquête pour obtenir ou espérer obtenir l’assistance qu’il serait en droit de rechercher, je suis d’avis qu’il peut le faire puisque l’expression « sans y être autorisé par la loi » contenue à son serment (à l’annexe II précédemment reproduite) inclut nécessairement le principe de la publicité des débats, codifié à l’article 13 C.p.c., et qui constitue l’une des pierres angulaires de notre système de justice.

Accordingly, the Dagenais/Mentuck framework applied:

[98]        Ainsi, dans la mesure où il estime qu’il y aurait lieu à ordonnance de confidentialité, le Syndic doit en faire la demande et administrer la preuve requise pour se décharger du fardeau de preuve que lui impose la grille d’analyse découlant des arrêts Dagenais et Mentuck.

Here, the Barreau had asked for a “wall-to-wall” publication ban based on the uniqueness of its position, but had not offered any supporting evidence (see para. 104). Once the Dagenais/Mentuck framework was held applicable, then, there was no possibility of ordering a publication ban. St-Pierre J.A. did, however, order a temporary ban, until such time as the superior court could carry out the required balancing exercise (see paras. 122-130).

In my view, when administrative decision-makers come into contact with the ordinary courts, reference to legislative intent may provide a more promising analytical framework than reliance on judicial discretion.

This content has been updated on June 11, 2014 at 09:47.