Justice Abella’s Administrative Law Jurisprudence: Protecting Administrative Decision-makers

I am speaking tomorrow (virtually) at a symposium at the University of Toronto celebrating Justice Abella’s career. My topic is the “Autonomy of Administration”, which I introduced in a previous post. Here is the first of two posts on Justice Abella’s promotion of administrative autonomy, to be followed tomorrow by a critical analysis of her administrative law jurisprudence

Justice Abella’s commitment to judicial restraint is the tip of a jurisprudential iceberg. In this section, I argue that through her administrative law jurisprudence, Justice Abella sought to promote administrative autonomy. On one level, judicial restraint provides protection for administrative decision-makers: deference is a shield to protect against incursions by the courts. To hold, as Justice Abella did on numerous occasions, that reasonableness is the standard of review protects administrative decision-makers.

Indeed, Justice Abella’s desire to protect administrative decision-makers can be glimpsed in her dissent in Penner v. Niagara (Regional Police Services Board).[1] 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,[2] 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. As explained in Danyluk v. Ainsworth Technologies Inc.,[3] a court retains discretion, exercisable on the basis of fairness, to refuse to estop an issue based on prior administrative proceedings.

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.[4] Writing with LeBel J, Justice Abella disagreed with each component of the majority’s reasoning. The core of its disagreement is found in the following passage:

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.[5]

In one sense, this may seem like 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.

Be that as it may, Justice Abella’s approach in dissent certainly had the effect of protecting the autonomy of the administrative decision-making process.


[1] 2013 SCC 19.

[2] RSO 1990, c P.15.

[3] 2001 SCC 44.

[4] Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125, especially at paras. 47, 70.

[5] Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125, at para. 107.

This content has been updated on September 22, 2022 at 20:27.

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