Penner v Niagara (Regional Police Services Board)
How open and accessible are the courts? Should administrative tribunal decisions always bar relitigating issues in parallel civil court proceedings?
On April 5, 2013, the Supreme Court of Canada dealt with an unusual situation involving access to justice and civil procedure in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. The Ontario courts had struck out a civil claim for damages for injuries arising from alleged police misconduct on grounds that an administrative tribunal – a police disciplinary hearing headed by a retired police superintendent – had resulted in rejection of the complainant’s version of events. The Ontario courts had decided that was sufficient to deny the Plaintiff his “day in court.” The Supreme Court of Canada, by a majority of 4 to 3, held that there had to be flexibility, not a rigid rule. Courts had a discretion to allow a civil court case to go ahead even when an administrative tribunal had decided some issues that overlapped with it. The “interests of justice” and balancing whether the results of the tribunal’s process ought to be allowed to have final effect on the claims were key. The lower courts had focused on whether the tribunal’s process was fair and not considered whether allowing the result of that process to bar a civil justice claim in court was fair.
Robert D. Holmes, Q.C., acted as counsel for the Intervenor B.C. Civil Liberties Association on the appeal. He noted that in an increasingly regulated economy, decisions by government regulatory agencies are often made and not challenged because they involve only minor issues and small amounts of money. Efficiency for business, government and individuals often means that interested parties either do not participate or do so in only a limited fashion with some tribunal proceedings. But where someone suffers a real injury, has serious concerns that their rights have been violated, and wants a considered adjudication of their claims based upon full facts, it is essential that they have access to the civil courts to obtain justice. Having a rigid rule that denied that would be unjust. It would allow rules of procedure to become the master and not the servant of justice. The court agreed, saying that “the parties could not reasonably have contemplated that … the disciplinary hearing would determine the outcome of Mr. Penner’s civil action.” There was no notice that participating in the discipline hearing would bar proceeding with his court case. In essence, it was simply unfair to have the results of that process determine what the civil courts could do in reaching a just outcome.
The case has far-reaching implications. Very often one or another party to a court case has had some involvement either before or during the case with a government agency or tribunal. Those can range from simple matters such as whether a building permit has been denied, rezoning or development variance has been refused, a disability or other pension entitlement has been rejected, or a service or disciplinary complaint not accepted. If decisions by such tribunals were to fetter what a court could do, then parties would be forced to fight tooth and nail through the tribunal process, making those inefficient and driving up costs all round. Alternatively, parties might choose not to participate in or cooperate with tribunals at all, with the same effect. By providing for a flexible and balanced approach, the Supreme Court has made just outcomes more likely in most cases.