Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

This Week at the SCC (05/04/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Kirsten Thompson

This week, the Supreme Court issued two judgments of interest to Canadian businesses and professions. In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Court reaffirmed the test for the exercise of discretion in applying issue estoppel. In Ediger v. Johnston, 2013 SCC 18 , a medical malpractice case, the Court discussed the standard of care and causation.

In Penner, Mr. Penner was arrested during a courtroom disturbance, which resulted in proceedings under the police disciplinary process. A hearing officer ultimately dismissed Mr. Penner’s complaint. Mr. Penner then commenced a civil action against the same parties. The respondents moved to strike Mr. Penner’s Statement of Claim by way of issue estoppel. Despite the test of issue estoppel having been a met, a court nonetheless retains discretion to not apply the doctrine if to do so would result in unfairness or injustice.

The Supreme Court, in a divided decision, found that there were significant differences between the purpose and scope of the police disciplinary proceeding and the civil proceeding. These differences could result in unfairness, particularly given the “reasonable expectations” of the parties about the impact of the proceedings on their rights. The Court held that a broader exercise of discretion regarding administrative proceedings was warranted. As a result, to apply issue estoppel would result in an injustice, and the Court allowed the appeal.

In Ediger, the Supreme Court overturned a ruling by the B.C. Court of Appeal which held that an obstetrician did not breach the standard of care when the infant plaintiff was injured in connection with the delivery process.  The Court’s judgment deals with issues of causation and standard of care in the context of a medical negligence action.