Monday, April 29, 2013

Issue Estoppel - its not over until the Supreme Court says its over

The Supreme Court of Canada recently tackled the difficult issue of issue estoppel - again.

 There has long existed a tension between a litigant's desire for finality and the often competing requirement that a judge or administrative tribunal exercise its discretion to ensure that no injustice results. In a close (4 to 3)  decision, the Supreme Court of Canada came down in favour of permitting the exercise of discretion by decision makers. This decision will undoubtedly result in more litigation and see many more litigants apply for stays of proceedings on the basis of issue estoppel.

In the case of Penner v. Niagara (Regional Police Services Board), Penner was arrested for disruptive behaviour in an Ontario courtroom. He filed a complaint against two police officers under the Police Services Act ("PSA") alleging unlawful arrest and unnecessary use of force. He also started a civil action claiming damages arising out of the same incident.

The Niagara Chief of Police appointed a hearing officer under the PSA who found the police officers not guilty of misconduct and dismissed Penner's complaint. The hearing officer's decision was reversed on appeal by the Ontario Civilian Commission on Police Services on the basis that the arrest was unlawful. On further appeal, the Ontario Divisional Court concluded that the officers had legal authority to make the arrest and restored the hearing officer's decision. The police officers then successfully moved in the Ontario Superior Court of Justice to have Penner's claims in the civil action struck on the basis of issue estoppel.

While finding that several factors weighed against the application of issue estoppel, the Ontario of Appeal concluded that applying the doctrine would not work an injustice in this case and dismissed Penner's appeal.

In allowing Penner's appeal and holding that his civil action could proceed, the majority of the Supreme Court of Canada held as follows:

The doctrine of issue estoppel allows for the exercise of discretion to ensure that no injustice results. There must be a case-by-case review of the circumstances to determine whether it would be unfair or unjust to apply issue estoppel or whether the preconditions for applying it have been met. In the circumstances of this case it was unfair to Penner to apply issue estoppel.

While finality is important to the judicial system unfairness in applying issue estoppel may still arise. In this case there was a significant difference between the purposes, processes or stakes involved in the two proceedings. Where the legislative scheme contemplates multiple proceedings and the purposes of those proceedings are widely divergent, to apply the doctrine might upset the parties legitimate and reasonable expectations and might also undermine the policy goals of the administrative proceedings. This would result in encouraging more formality and protraction in proceedings or discouraging access to the administrative proceedings all together. In each case, the court has to consider the parties' reasonable expectations about what is at stake in the proceedings or the fundamentally different purposes between them.

In this case, nothing in the legislative text gave rise to an expectation that the disciplinary hearing would be conclusive of Penner's legal rights in a civil action: the standards of proof required and the purposes of the two proceedings are significantly different; and unlike a civil action, the disciplinary process provided no remedy or costs for Penner.  In short, the Court of Appeal did not take into account important considerations which included the procedural protections afforded to Penner by the administrative process.

Finally, applying issue estoppel had the effect of using the decision of the Chief of Police's designate to exonerate the Chief in the civil action and was therefore a serious affront to basic principles of fairness.

Not surprisingly, the three dissenting judges held that the more important principle in the case was the finality of litigation which in their view assured the fairness of the justice system in Canada. The dissenting judges held that the principles underlying the doctrine of the issue estoppel - that there should be an end to litigation - and that the same party should not be harassed twice for the same cause, are core principles which focus on achieving justice and preventing injustice by preserving the finality of litigation.

The dissenting judges held that in this case, issue estoppel should apply. The difference between the standard of proof required to establish misconduct under the PSA and that required in a civil trial were irrelevant in this case. The hearing office (appointed by the Chief of Police) made unequivocal findings that there was virtually no evidence to support Penner's claims. That means that there was no evidence to support his claims whatever standard of proof was applied and a civil action would inevitably yield the same result.

The dissenting judges referred to the arguments of potentially inconsistent results in re-litigating matters to support their conclusion.

Regards,

Blair


Friday, April 26, 2013

Police need to obtain wiretap authority to access future text messages.

The Supreme Court of Canada recently released a decision which held that the police could not rely on the general warrant provisions of the Criminal Code (Code) to compel Telus Communications Company (Telus) to provide them with copies of future text messages sent or received by two Telus subscribers. Rather,  if the police wanted to obtain access to these text messages, they would have to obtain a specific wiretap authorization under Part VI of the Code.

Unlike most mobile telephone providers, Telus routinely makes electronic copies of all text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.   In the case decided by the court, the police obtained a general warrant which required Telus to produce on a daily basis any future messages which would be sent or received during a two week period.  Telus applied to quash the general warrant arguing that it constituted an interception of private communications and therefore required authorization under the wiretap authorization provisions in Part VI of the Code.

The Ontario Superior Court of Justice dismissed Telus' application and the appeal went directly to the Supreme Court of Canada.  The majority of the court allowed the appeal and ordered that the general warrant be quashed.

Justice Abella wrote that, "The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI of the Code. The general warrant provision of the Code should be broadly construed to ensure that it is not used to circumvent the more specific or rigorous pre-authorization requirements for warrants, such as those found in Part VI". Justice Abella then embarked on interpreting the meaning of the word "intercept" and held that the word must be broadly interpreted and must focus "on the acquisition of informational consent and the individual's expectation of privacy at the time the communication was made".

Finally, the learned judge held that text messages are private communications and even if they are stored on a service provider's computer, their production requires authorization under Part VI of the Code. If Telus did not maintain its computer database there is no doubt that the police would be required to obtain an authorization under Part VI of the Code to secure the prospective production of text messages. Most service providers do not routinely copy text messages to a computer database. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wire tap authorization under Part VI of the Code to compel the production. This creates a "manifest unfairness" to individuals who are unlikely to realize that their choice of telecommunication service provider can dramatically effect their privacy. Using Telus should not deprive it subscribers of the protection of the Code to which every other Canadian is entitled.

Regards,

Blair