Julian Falconer and Julian Roy, of Falconers LLP, represented Wayne Penner, who was arrested for causing a disturbance during a trial. He filed a police complaint with the Police Services Board, alleging police misconduct, unlawful arrest and use of unnecessary force. The hearing officer found that the arrest was lawful and no unnecessary force was used. The Civilian Commission on Police Services overturned the hearing officer’s decision because he had failed to determine whether the arresting officers had the lawful authority to make an arrest but agreed that no unnecessary force was used. On judicial review of the Commission’s decision, the Divisional Court restored the hearing officer’s decision. The appellant commenced a civil action, suing the officers and the Niagara Regional Police Services Board for unlawful arrest, unnecessary use of force, false imprisonment and malicious prosecution. The Respondent Officers and the Police Services Board brought a Motion to Strike the claim on the basis of issue estoppel. The Ontario Court of Appeal struck the appellant’s claim, holding that issue estoppel applies to the findings of a police disciplinary hearing so as to prohibit a public complainant from seeking civil law compensation for alleged police misconduct. The Supreme Court of Canada granted the Appellants’ request for leave to appeal the Ontario Court of Appeal’s decision. The appeal was heard on January 11, 2012, and the decision was released on April 5, 2013, reversing the Ontario Court of Appeal, holding that decisions of police discipline adjudicators cannot tie the hands of judges in lawsuits against the police.

Related Documents

Press Advisory. April 5, 2013

Court Documents

Supreme Court decision. April 5, 2013
Factum of the Appellant. July 14, 2011
Factum of the Respondents. September 8, 2011
Notice of Appeal. April 21, 2011
Supreme Court Judgment Granting Leave to Appeal. March 24, 2011
Factum on Leave to Appeal. November 26, 2010
Court of Appeal Judgment. September 27, 2010

Intervenor Factums

Factum of the British Columbia Civil Liberties Association
Factum of the Canadian Civil Liberties Association
Factum of the Criminal Lawyers Association
Factum of the Urban Alliance on Race Relations
Factum of the Attorney General for Ontario
Factum of the Canadian Police Association

Case Team