DOCSLIB.ORG

Issue Estoppel Decision Splits Top Court 4-3

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Issue Estoppel Decision Splits Top Court 4-3 Issue estoppel decision splits top court 4-3 By Cristin Schmitz April 19 2013 issue In a 4-3 decision on issue estoppel, the Supreme Court has ruled that, in order to preserve fairness, courts retain a broad discretion to revisit issues previously decided by administrative tribunals. The decision handed down April 5, after 15 months on reserve, permits an Ontario man to sue for damages for alleged police brutality, even though a police disciplinary tribunal previously dismissed his allegations: Penner v. Niagara (Regional Police Services Board) [2013] S.C.J. No. 19. Notably, the seven judges divided deeply over the proper application of the doctrine of issue estoppel, which generally bars the re-litigation of the same issues between the same parties that were conclusively decided in a prior administrative or court proceeding. On behalf of the four-judge majority, Justices Thomas Cromwell and Andromache Karakatsanis emphasized that the doctrine of issue estoppel allows courts to exercise discretion to ensure that no injustice results. Therefore, they said the doctrine calls for a case-by-case review of the circumstances to determine whether the application of issue estoppel would be unfair or unjust, even where the preconditions for its application have otherwise been met. The majority ruled that the proper approach to issue estoppel is still governed by Danyluk v. Ainsworth Technologies Inc. [2001] S.C.J. No. 46, and has not been overtaken by later jurisprudence. By contrast, the three-judge minority, led by Justices Louis LeBel and Rosalie Abella, vigorously argued that the courts’ residual discretion to refuse to apply issue estoppel is much narrower than argued by the majority, given that “the ultimate goal of issue estoppel is to protect the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with authority to resolve them.” Backed by Justice Marshall Rothstein, the dissenters urged that the governing approach to issue estoppel was expressed by B.C. Workers Compensation Board v. Figliola [2011] S.C.J. No. 52. For the five judge-majority on that issue in Figliola, Justice Abella ruled that the administrative tribunal in question had limited statutory discretion to proceed with complaints already dealt with by another tribunal — while Justice Cromwell contended for the minority on that point that the tribunal had “flexible discretion” to decide whether to proceed with a complaint, after balancing the demands of finality and fairness. Penner, the court’s latest pronouncement on issue estoppel, continues what has emerged as a fierce judicial debate, albeit with Justice Cromwell garnering a thin majority this time in favour of greater curial discretion not to apply issue estoppel. “What the majority reasons in Penner teach us is concepts of fairness, as they inform the final leg of the issue estoppel test, will always be an important consideration,” said Penner’s counsel Julian Falconer of Toronto’s Falconer Charney. “So if the process from which issue estoppel is claimed is weighted unfairly in favour of one party over another, then issue estoppel may well be found to be inapplicable. “It’s apparent that fairness considerations have to go beyond the factors itemized in Figliola and, in particular, notions of finality. Notions of finality are important, but they can’t be the only, and absolute, consideration,” Falconer said. Ian Roland of Toronto’s Paliare Roland, counsel for the intervener Canadian Police Association, told The Lawyers Weekly the judgment leaves the law on issue estoppel confused. Added counsel for the intervener Criminal Lawyers’ Association, Louis Sokolov of Toronto’s Sack Goldblatt Mitchell: “The application of the doctrine of issue estoppel is going to be highly fact-dependent and reviewed on a case-by-case basis.” The Supreme Court’s majority overturned a 2010 Ontario Court of Appeal decision that threw out Wayne Penner’s civil damages claims against the Niagara police board, its chief of police and others. The Court of Appeal did so because a police disciplinary hearing, presided over by a retired police superintendent appointed under the Police Services Act by the police chief, determined that police had reasonable grounds to arrest Penner for causing a public disturbance in 2004, and did not use unnecessary force in doing so. The Court of Appeal held that the doctrine of issue estoppel precluded Penner’s civil claims. But the Supreme Court’s majority, which also included Chief Justice Beverley McLachlin and Justice Morris Fish, ruled that “it was unfair to the appellant to apply issue estoppel to bar his civil action.” In particular, there was a significant difference between the purpose and scope of the discipline and civil proceedings, and Penner would not have reasonably expected that his damages claims would effectively be determined by the police hearing officer. Moreover, “it is unfair to use the decision of the chief of police’s designate to exonerate the chief in a subsequent civil action,” the majority held. The dissenters argued that issue estoppel barred Penner’s civil claims. They urged that differences in the processes or procedures used by administrative tribunals and courts “should not be used as an excuse to override the principle of finality.” .
Load more

Recommended publications
  • COURT JUSTICES, 1985-2013 Jean-Christophe Bédard-Rubin
    Paper prepared for the 2018 CPSA Annual Conference – Please do not cite nor circulate without permission HOW MUCH FRENCH DO THEY SPEAK ANYWAY? A BILINGUALISM INDEX FOR SUPREME COURT JUSTICES, 1985-2013 Jean-Christophe Bédard-Rubin & Tiago Rubin Draft paper prepared for the CPSA 2018 Annual Conference. Please do not cite nor circulate without permission. Mandatory bilingualism for Supreme Court judges tantalizes Canadian politics for at least ten years now. The advocates of judicial bilingualism have repeatedly tried (and failed) to enshrine into law the requirement for Supreme Court justices to be functionally bilingual, i.e. the ability to “read materials and understand oral argument without the need for translation or interpretation in French and English”. For them, integrating mandatory bilingualism as a legislative requirement in the appointment process is a panacea. Their opponents argue that language proficiency in French should not be a sine qua non condition for Supreme Court justiceship and that requiring it would prevent excellent candidates from being appointed. However, despite the fact that empirical statements abound on both sides, there is very little empirical evidence regarding the actual impact of unilingualism and bilingualism on Canadian judicial institutions and simply no evidence whatsoever about its impact on individual judges’ behavior. Building on our ongoing research on judicial bilingualism, in this paper we try to evaluate the level of bilingualism of individual justices. What our findings suggest is that the behavior of Francophone and Anglophone bilinguals is influenced by the linguistic competency of their colleagues. Our findings also suggest that some Anglophone justices that are deemed to be bilinguals do not behave very differently from their unilingual colleagues.
    [Show full text]
  • CCCC Attended Supreme Court of Canada Hearing on the Aga Case
    Table of Contents • CCCC attended Supreme Court of Canada hearing on the Aga case CCCC attended Supreme Court of Canada hearing on the Aga case Analysis of current issues involving law, religion, and society, led by Barry W. Bussey, Director of Legal Affairs. By Barry W. Bussey CCCC (09.12.2020) - https://bit.ly/3nlGTQl - CCCC’s Director of Legal Affairs, Barry W. Bussey, represented the CCCC at the Supreme Court of Canada’s virtual hearing today (Dec 9) in the case of Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, et al. v. Teshome Aga, (39094). CCCC was granted the opportunity to intervene in the case, and to file a brief, but was not given time for oral argument. Brief fact summary Several members of the Ethiopian Orthodox Tewahedo Church St. Mary Cathedral were on a committee that investigated a movement within the congregation. The committee reported to Archbishop Dimetros that the movement was heretical. The committee recommended action, including purging of heretics. When Archbishop Dimetros did not follow their recommendations, the committee members were robust in their opposition – to the point that they were warned of church discipline. Finally, they were suspended from membership. In response, they then sued in court. The church in return asked for summary judgment to dismiss the lawsuit. The Ontario Superior Court of Justice agreed with the church and dismissed the disgruntled members’ lawsuit, noting that the courts have no jurisdiction to hear such cases. However, the members appealed to the Ontario Court of Appeal. The Court of Appeal stated that courts could hear the case because there was a contract between the members and the church.
    [Show full text]
  • Judicial Review, a Comparative Perspective: Israel, Canada, and the United States
    Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 2010 Judicial Review, a Comparative Perspective: Israel, Canada, and the United States Malvina Halberstam Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Malvina Halberstam, Judicial Review, a Comparative Perspective: Israel, Canada, and the United States, 31 Cardozo Law Review 2393 (2010). Available at: https://larc.cardozo.yu.edu/faculty-articles/68 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. JUDICIAL REVIEW, A COMPARATIVE PERSPECTIVE: ISRAEL, CANADA, AND THE UNITED STATES INTRODUCTION Malvina Halberstam∗ On April 26, 2009, the Benjamin N. Cardozo School of Law hosted a roundtable discussion, Judicial Review, a Comparative Perspective: Israel, Canada, and the United States, with prominent jurists, statesmen, academics, and practicing attorneys.∗∗ The panel was comprised of Justice Morris Fish of the Canadian Supreme Court; Justice Elyakim Rubinstein of the Israeli Supreme Court; Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit; Hon. Irwin Cotler, a member of the Canadian Parliament and formerly Minister of Justice and Attorney General of Canada; Hon. Michael Eitan, a Minister in the government of Israel, a member of the Knesset (Israeli Parliament), and former chair of the Committee on the Constitution, Law and Justice; Professor Daniel Friedmann, formerly Minister of Justice of Israel, who proposed legislation to remedy what some view as serious problems with judicial review in Israel; Nathan Lewin, one of the most eminent attorneys in the United States, who has argued many cases before the U.S.
    [Show full text]
  • The Quintessential Trusted Advisor
    « THE VOICE OF MONTREAL ENGLISH-SPEAKING LAWYERS » Vol.1, No 4 $4 The quintessential trusted advisor Me Monique Mercier, Executive Vice-President, Corporate Affairs, Chief Legal Officer and Corporate Secretary, TELUS Suzanne Côté appointed to the Supreme Court of Canada Cross-examination of plaintiffs lost-profits damages expert-Part 1 By Richard M.Wise of MNP Made in Court Supreme Court Decisions that shaped Canada By Richard W.Pound of Stikeman Elliott The Eternal Beauty of the Jewelry of Carl Fabergé By Olga Shevchenko, FGA — Certified Gemmologist The new covered terrace DISCOVER THE SINCLAIR WORLD DISCOVERY MENU | WINE PAIRING BUSINESS LUNCH | URBAN BRUNCH TAILORED CORPORATE EVENTS BANQUET HALL | WEDDINGS [email protected] | RESTAURANTSINCLAIR.COM 514 284.3332 | 414, RUE SAINT-SULPICE Monique Mercier, Executive Vice-President, Corporate Affairs, Chief Legal Officer and Corporate Secretary, TELUS “General Counsel Emeritus of the Year 2014” “The quintessential trusted advisor” By André Gagnon onique Mercier, a corporate lawyer who prac- ticed at Stikeman Elliott in Montreal, with Mfiscal law stars such as Guy Masson and Mau- rice Régnier who introduced her to intricate tax and corporate matters, moved to become General Counsel of Bell Canada International and later on Executive Vice- President of Legal Services of Emergis and TELUS. According to Norm Steinberg, Global Vice Chair and Chair- man –Canada of Norton Rose Fulbright, who knows Mo- nique well (and from whom we borrowed the phrase) “She is the quintessential trusted advisor.” Norm praised her Report that may be consulted at http://about.telus.com/ legal talents at a recent recognition dinner held in her investors/ammialreport2013/files/pdf/en/ar.pdf honour at the Montreal University Club.
    [Show full text]
  • Carissima Mathen*
    C h o ic es a n d C o n t r o v e r sy : J udic ia l A ppointments in C a n a d a Carissima Mathen* P a r t I What do judges do? As an empirical matter, judges settle disputes. They act as a check on both the executive and legislative branches. They vindicate human rights and civil liberties. They arbitrate jurisdictional conflicts. They disagree. They bicker. They change their minds. In a normative sense, what judges “do” depends very much on one’s views of judging. If one thinks that judging is properly confined to the law’s “four comers”, then judges act as neutral, passive recipients of opinions and arguments about that law.1 They consider arguments, examine text, and render decisions that best honour the law that has been made. If judging also involves analysis of a society’s core (if implicit) political agreements—and the degree to which state laws or actions honour those agreements—then judges are critical players in the mechanisms through which such agreement is tested. In post-war Canada, the judiciary clearly has taken on the second role as well as the first. Year after year, judges are drawn into disputes over the very values of our society, a trend that shows no signs of abating.2 In view of judges’ continuing power, and the lack of political appetite to increase control over them (at least in Canada), it is natural that attention has turned to the process by which persons are nominated and ultimately appointed to the bench.
    [Show full text]
  • Reforming the Supreme Court Appointment Process, 2004-2014: a 10-Year Democratic Audit 2014 Canliidocs 33319 Adam M
    The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 67 (2014) Article 4 Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit 2014 CanLIIDocs 33319 Adam M. Dodek Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Dodek, Adam M.. "Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 67. (2014). http://digitalcommons.osgoode.yorku.ca/sclr/vol67/iss1/4 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit* Adam M. Dodek** 2014 CanLIIDocs 33319 The way in which Justice Rothstein was appointed marks an historic change in how we appoint judges in this country. It brought unprecedented openness and accountability to the process. The hearings allowed Canadians to get to know Justice Rothstein through their members of Parliament in a way that was not previously possible.1 — The Rt. Hon. Stephen Harper, PC [J]udicial appointments … [are] a critical part of the administration of justice in Canada … This is a legacy issue, and it will live on long after those who have the temporary stewardship of this position are no longer there.
    [Show full text]
  • “Canada” on the Supreme Court in 2016
    DRAFT | CPSA 2017 Please don’t cite without permission Competing Diversities: Representing “Canada” on the Supreme Court in 2016 Erin Crandall | Acadia University Robert Schertzer | University of Toronto The Supreme Court oF Canada’s (SCC) inFluence on politics and public policy – from deciding human rights cases to adjudicating Federal-provincial disputes – has long placed it in the spotlight oF political actors and watchers alike. Seeing the Court as activist or restrained, as siding with the Federal government or as balanced in its Federalism case law, as anti-democratic or the guardian oF the constitution, are all hallmarks oF the debate about its place in Canadian politics. Underpinning these debates is an often-critical focus on the justices’ themselves, the process by which they are selected, and the virtually unFettered power Prime Ministers have had in appointing individuals to the bench. In August 2016, Prime Minister Justin Trudeau clearly established his position within this debate by announcing a new way to choose SCC justices. Along with promoting more transparency and accountability in the process, the key elements oF Trudeau’s proposed reForms were to ensure that all future justices were functionally bilingual and that they represent the diversity of Canada (see Trudeau 2016b). In line with these new objectives, one oF the First things Trudeau highlighted in his announcement was a willingness to break with the convention of regional representation on the bench and move toward an open application process. With the upcoming retirement of Nova Scotia Justice Thomas Cromwell in September 2016, questions immediately emerged as to whether the government would deviate from the tradition of having one of the nine justices on the SCC come from Atlantic Canada.
    [Show full text]
  • Year in Review
    2 0 Year in Review 1Supreme 9 Court of Canada Cour suprême du Canada Find the Visit our Like us on Follow us on Supreme website at Facebook at Twitter at scc-csc.ca facebook.com/ twitter.com/SCC_eng Court of Supreme Canada CourtofCanada online! This was the very first photo ever taken of the current judges together. It was taken in the library of the Winnipeg Law Courts on September 23, 2019. © Supreme Court of Canada (2020) Front cover: Grand Hall, Supreme Court of Canada All photos (except pages 8-9, bottom photo on page 16, left-hand photos on page 17, and page 18): Supreme Court of Canada Collection Photo credits: Pages 4-5: Justices Abella and Côté – Philippe Landreville, photographer | Justice Karakatsanis – Jessica Deeks Photography | Justices Gascon, Brown, and Rowe – Andrew Balfour Photography Page 7: Cochrane Photography Page 8-9: True North Sports + Entertainment The Supreme Court of Canada emblem is a symbol of the Court as the highest judicial Page 16: Senate of Canada institution in Canada. It was designed nearly a century ago by the Page 17 - left side, top: Supreme Court of the United Kingdom distinguished Montreal architect Ernest Cormier, and can be found emblazoned Page 17 - left side, bottom: Embassy of Canada to Japan in the marble floor of the Court’s Grand Hall leading to the Main Courtroom. Page 18: Shannon VanRaes/Winnipeg Free Press As its emblem, it represents the Court’s key values of justice, independence, integrity, ISSN 2562-4776 (Online) transparency, and bilingualism. A Message from the Chief Justice When I became Chief Justice just over two years ago, I committed to making the Court more open and understandable, and to enhancing access to justice for everyone.
    [Show full text]
  • Year in Review Supreme Court of Canada Cour Suprême Du Canada Find the Supreme Court of Canada Online
    2020Year in Review Supreme Court of Canada Cour suprême du Canada Find the Supreme Court of Canada online Like us on Facebook Follow us on Twitter Visit our website at SupremeCourtofCanada @SCC_eng www.scc-csc.ca Current bench of the Supreme Court of Canada Photo credits: All photos (except photo on page 9): Supreme Court of Canada Collection Page 3: Cochrane Photography Page 9: Speech from the Throne – PMO-CPM Pages 10 and 11: Justices Abella and Côté – Philippe Landreville, photographer | Justice Karakatsanis – Jessica Deeks Photography | Justices Brown and Rowe – Andrew Balfour Photography The Supreme Court of Canada emblem is a symbol of the Court as Page 28: Justices Brown, Abella et Kasirer – the highest judicial institution in Canada. It was designed nearly Justice Andromache Karakatsanis a century ago by the distinguished Montreal architect Ernest Supreme CourtSupreme Canada of Cormier, and can be found emblazoned in the marble floor of the Court’s Grand Hall leading to the Main Courtroom. © Supreme Court of Canada (2021) The emblem represents the Court’s key values of justice, ISSN 2562-4776 (Print) independence, integrity, transparency and bilingualism. Message from the Chief Justice Along with millions of Canadians in 2020, the Supreme Court of Canada found innovative ways to pivot, adapt and persevere through a global pandemic. Our dedicated employees introduced new technologies, streamlined processes and implemented protocols in collaboration with public health authorities to ensure everyone’s safety and health while serving Canadians. I am proud of the Court’s agility and commitment to maintain access to justice throughout a devastating public health crisis.
    [Show full text]
  • Diversifying the Bar: Lawyers Make History Biographies of Early and Exceptional Ontario Lawyers of Diverse Communities Arran
    ■ Diversifying the bar: lawyers make history Biographies of Early and Exceptional Ontario Lawyers of Diverse Communities Arranged By Year Called to the Bar, Part 2: 1941 to the Present Click here to download Biographies of Early and Exceptional Ontario Lawyers of Diverse Communities Arranged By Year Called to the Bar, Part 1: 1797 to 1941 For each lawyer, this document offers some or all of the following information: name gender year and place of birth, and year of death where applicable year called to the bar in Ontario (and/or, until 1889, the year admitted to the courts as a solicitor; from 1889, all lawyers admitted to practice were admitted as both barristers and solicitors, and all were called to the bar) whether appointed K.C. or Q.C. name of diverse community or heritage biographical notes name of nominating person or organization if relevant sources used in preparing the biography (note: living lawyers provided or edited and approved their own biographies including the names of their community or heritage) suggestions for further reading, and photo where available. The biographies are ordered chronologically, by year called to the bar, then alphabetically by last name. To reach a particular period, click on the following links: 1941-1950, 1951-1960, 1961-1970, 1971-1980, 1981-1990, 1991-2000, 2001-. To download the biographies of lawyers called to the bar before 1941, please click Biographies of Early and Exceptional Ontario Lawyers of Diverse Communities Arranged By Year Called to the Bar, Part 2: 1941 to the Present For more information on the project, including the set of biographies arranged by diverse community rather than by year of call, please click here for the Diversifying the Bar: Lawyers Make History home page.
    [Show full text]
  • The Honourable Justice Louis Lebel**
    A COMMON LAW OF THE WORLD? THE RECEPTION OF CUSTOMARY INTERNATIONAL LAW IN THE CANADIAN COMMON LAW* The Honourable Justice Louis LeBel** INTRODUCTION In an increasingly globalized world, the importance of international law to our domestic legal system continues to grow. This growth is both exponential and multi- dimensional. International law had been traditionally concerned with relations between states and about the status and action of international organizations. But today, not only is international law having a greater impact than ever on the state of domestic law, it also influences more areas of domestic law than ever. These areas include human rights, labour law, commercial law, intellectual property law, immigration and refugee law, and criminal law, to name but a few. In this paper, I intend to focus on the means by which customary international law exerts its influence on the Canadian domestic legal culture. As will be discussed in greater detail below, customary international law is developed by state practice and the recognition of the legally binding nature of this practice, while other parts of international law are grounded in treaties and other multilateral instruments, which reflect the contractual activities of states and organizations. I will address some intricacies of this process. Before I do so, however, I will use again an analogy which, at least for the classical music lovers, may be of some assistance to understand the issues of interaction of international and domestic law. A number of years ago, I co-wrote an article describing how the reception of international law into the Canadian legal order could be usefully compared to two distinct classical musical styles.
    [Show full text]
  • Gender Equality I
    Gender EqualityI.,. ,!Sa*=fl q J$ * ."" &,j & ;"<$$p "" !:A"- %* BY MICHELLE FALARDEAU-RAMSAY, Q.C, Pour montrer I'Pvolution des droits a I'PgalitP, lkuteure the future." In the early years of Confederation, women utilise, h commencer par les '5fameuses"du cas Personne en faced severe discrimination under the law and were sys- 1929, la tradition chez les Canadiennes, de se seruir du tematically excluded from the judicial system. Certain systi.me judiciaire incluant les tribunaux administratifj. criminal laws, such as infanticide, applied only to women, and different punishments for crimes were meted out When I graduated from law school in the late '50s, I was depending on the sex of the offender. Family law, under one of only six women in a class of 200. I was asked at the both civil law in Quebec and common law in other parts time, on more than one occasion, whether I was studying. - of Canada, treated women entirely as dependents. For law because I wanted to marry a lawyer, a question that example, a husband's permission was necessary for a wife would be inconceivable today. The first time I appeared in to engage in business, or even to administer or sell prop- court on behalf of a client, I was asked by a colleague erty which she had owned before marriage. whether I would cry if I lost the case. And I remember one Nor could women have any influence over the laws that occasion in the Montreal courthouse when three male affected them. Women could not vote or hold public colleagues stood guard while I used the men's washroom, office, and it was not until 1897 that the first woman- because it had not occurred to anyone to put aladies' room Clara Brett Martin-was admitted to the Bar of a Cana- in the area reserved for lawyers.
    [Show full text]