Findings made in a police disciplinary proceeding can preclude re-litigating those same issues in a civil action

Penner v. Niagara (Police Services Board), 2010 ONCA 616 decides that findings made in a police disciplinary proceeding can preclude re-litigating those same issues in a civil action. A key element to the decision is that the complainant is a party in such hearings. The specific facts also matter - if the discipline hearing turns on matters outside the expterise of the hearing officer the bar on re-litigating may not apply.

The Court held:

[23] The respondents seek to estop Mr. Penner from litigating in his civil action issues decided in the disciplinary hearing under the Police Service Act. To do so, they must show three things:

(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.

[24] Even if these three requirements of issue estoppel have been met, the court retains the discretion to refuse to apply it if doing so would be unfair or work an injustice. See Danyluk, supra and Minott, supra.

[25] Mr. Penner accepts that the second requirement of issue estoppel has been met. The decision of the hearing officer was a final decision. Moreover, Mr. Penner has not sought to review the Divisional Court's affirmation of the hearing officer's decision. The hearing officer's decision was also a judicial decision for the purpose of issue estoppel: the hearing officer was carrying out a judicial function and the hearing was conducted with basic standards of procedural fairness. See Minott at para. 35.

[26] Thus, the issues on this appeal are: whether the same question and same parties requirements are met; if so, whether issue estoppel also precludes Mr. Penner's claims for false imprisonment and malicious prosecution; and finally, if the three requirements of issue estoppel are met, whether the motion judge erred in not exercising his discretion to refuse to apply issue estoppel.

(2) Same Question?

[27] Three questions were in issue in the disciplinary proceedings: Was the arrest lawful? Was unreasonable force used during the arrest? Was unreasonable force used at the police station? Mr. Penner's civil action, in which he sues for damages for false arrest and the use of unnecessary force both during and after his arrest, raises the same three questions.

[28] The hearing officer answered all three questions adversely to Mr. Penner. He found that the officers had reasonable and probable grounds to arrest Mr. Penner and that the arrest was lawful. He also found that the officers had not used unnecessary force during or after the arrest. The Divisional Court affirmed his findings. Therefore, I agree with the motion judge that the respondents satisfy the same question requirement of issue estoppel.

(3) Same Parties?

[29] I also agree with the motion judge that the respondents satisfy the same parties requirement of issue estoppel. Mr. Penner and officers Parker and Koscinski were parties before the hearing officer, the Commission and the Divisional Court. And they are parties in Mr. Penner's civil action.

[30] Mr. Penner, however, contends that he was not a party in the disciplinary proceedings. I do not accept his contention. Mr. Penner filed a complaint under the Police Services Act. That complaint led to the disciplinary proceedings against the two officers. Section 69(3) of the Police Services Act stipulates that if the complaint was made, as in this case, by a member of the public, the complainant is a party to the disciplinary hearing.

[31] Even if s. 69(3) by itself is insufficient to meet the same parties requirement of issue estoppel, Mr. Penner's active participation in the disciplinary proceedings establishes this requirement. See Minott at para. 39. Although Mr. Penner was not entitled to direct the prosecution of his complaint, he was in every other respect an active participant.

[32] At the hearing Mr. Penner had the right to retain counsel and he testified, cross-examined witnesses and made submissions on the legal issues. He appealed the hearing officer's decision to the Commission and participated in the appeal as the appellant. Finally, he was a respondent on the judicial review application and appeared before the Divisional Court on the application. The same parties requirement of issue estoppel is met.

[33] Therefore, the respondents have satisfied the three requirements of issue estoppel in respect of the questions of unlawful arrest and use of unnecessary force during and after the arrest.