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Issue estoppel is a judicial doctrine of public policy aimed at preventing an unsuccessful party from re-litigating the same matter before another court or tribunal. As stated by the Supreme Court of Canada in the foundational case Danyluk v. Ainsworth Technologies Inc., issue estoppel seeks to prevent “duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings.” As Binnie J. colourfully described issue estoppel in Danyluk: “A litigant … is only entitled to one bite at the cherry.” Issue estoppel balances the compelling goal of finality to litigation with the interests of justice. However, “A judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice.”

Issue estoppel involves a two-step process:

1. are the three preconditions to the operation of issue estoppel met; and
2. if so, should the court nonetheless use its discretion not to apply issue estoppel if it would work to create an injustice in the circumstances?

The three preconditions of issue estoppel are:

1. that the same question has been decided;
2. that the judicial decision which is said to create the estoppel was final; and
3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

The latest statement on the law of issue estoppel is the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board). This was a case about a litigant who filed a police complaint against a police officer under the Police Services Act and also commenced a civil action against the police officer. The question was whether the litigant was estopped from bringing his civil action because he had also filed a police complaint.

The Supreme Court split in its decision, but the majority held that the Court should use its residual discretion not to apply issue estoppel in this case because it would work an injustice against Mr. Penner. Writing for the majority, Justice Cromwell held that although the three preconditions were met for issue estoppel, there were material differences between a police complaints process and a civil action such that one should not bar the other. Specifically, the police complaints process does not allow Mr. Penner any personal remedy against the offending officer, whereas damages are available to Mr. Penner in the civil action, constituting a financial stake not otherwise present in the police complaints process. Moreover, the Court found that the reasonable expectations of the parties, based in large part on the proper interpretation of the governing Police Services Act, was that a complainant would not be prevented from commencing a civil action against an officer in addition to filing a disciplinary complaint.

Penner has already made an impact on how lower courts and administrative tribunals interpret and apply issue estoppel to cases before them. In a companion blog, we will highlight how the Human Rights Tribunal of Ontario has dealt with issue estoppel in light of Penner.