Does Penner Overrule Figliola? What's the Canadian law on Issue Estoppel?

Doubtless you have been waiting with bated breath for my promised discussion of whether the decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 is consistent with another recent decision, British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52. I think it is.

In Penner, the minority accused the majority of departing from Figliola:

[75]                          The applicable approach to issue estoppel was most recently articulated by this Court in 2011 in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII), 2011 SCC 52, [2011] 3 S.C.R. 422.  This is the precedent, therefore, that governs the application of the doctrine in this case. 

[76]                          The key relevant aspect of this precedent is that it moved away from the approach taken in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), 2001 SCC 44, [2001] 2 S.C.R. 460, which enunciated a different test for the discretionary application of issue estoppel in the context of administrative tribunals.  In so doing, Danyluk said that the approach should be “fairness” and set out a number of factors for assessing how “fairness” applied. In our view, these factors can no longer play the same role, nor be given the same weight, based on this Court’s subsequent jurisprudence starting with Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 S.C.R. 190.  These factors have largely been overtaken by the Court’s subsequent jurisprudence.  For example, the breach of natural justice factor based on the procedural differences between courts and administrative tribunals and the expertise of the decision maker focus on concepts eschewed by this Court in Dunsmuir and Smith v. Alliance Pipeline Ltd., 2011 SCC 7 (CanLII), 2011 SCC 7, [2011] 1 S.C.R. 160.  The factors dealing with the wording of the statute and the purpose of the legislation are now referred to as the tribunal’s mandate (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (CanLII), 2011 SCC 53, [2011] 3 SCR 471).

I am not sure I understand this explanation of how "subsequent jurisprudence" has changed the law: those changes mentioned seem more lexical and terminological than substantive. In any event, I think the minority overstates what Figliola decided.  

At the outset, it is worth noting an important formal difference. Penner involved the application of issue estoppel by a court. Figliola involved an administrative decision-maker applying a statutory provision that incorporated the underlying principles of, in part, issue estoppel. That difference seems significant to me, on the assumption that a deferential approach to judicial review permits administrative decision-makers to depart from courts' understandings of common law principles.

Figliola was a judicial review of a decision of the British Columbia Human Rights Tribunal. Mr. Figliola had made a battery of complaints about the Workers' Compensation Board's approach to chronic pain. One of these was a complaint under the provincial human rights legislation. This complaint was rejected by a review officer.

Before Mr. Figliola could bring his complaint to the Workers' Compensation Appeal Tribunal, the legislature changed the law so as to deny the Tribunal the authority to treat Mr. Figliola's complaint. Finding that avenue blocked off, Mr. Figliola made a complaint to the Human Rights Tribunal.

At issue in Figliola was whether the Human Rights Tribunal should hear the complaint at all. Under s. 27(1)(f) of the B.C. Human Rights Code, the Tribunal has the authority to dismiss a complaint that "has been appropriately dealt with in another proceeding". The case turned on the interpretation of this provision as applied to the treatment of Mr. Figliola's human rights complaint by the workers' compensation review officer.

The majority of the Supreme Court of Canada held that this provision incorporated the underlying principles of the common law doctrines of issue estoppel, collateral attack and abuse of process. It was "the statutory reflection of the collective principles underlying those doctrines, doctrines used by the common law as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness" (at para. 26).

These underlying principles were embraced by s. 27(1)(f), though not codified: "the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them.  Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved.  Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them" (at para. 36).

The BC Human Rights Tribunal ought to have asked itself three questions: "whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself" (at para. 37).

So far, it should be quite clear that Figliola does not represent a dramatic departure from Danyluk, with its seven factors to guide discretion in the application of issue estoppel. And if confirmation were needed that Figliola did not revisit Danyluk, it surely comes in the following passage:

[44]                          This then brings us to the Tribunal’s use of the Danyluk factors.  Not only do I resist re-introducing by judicial fiat the types of factors that the legislature has expressly removed, it is not clear to me that the Danyluk factors even apply.  They were developed to assist courts in applying the doctrine of issue estoppel.  Section 27(1)(f), on the other hand, is not limited to issue estoppel.  As Pitfield J. explained in Matuszewski, s. 27(1)(f) does not call for the technical application of any of the common law doctrines — issue estoppel, collateral attack or abuse of process — it calls instead for an approach that applies their combined principles.  Notably, neither Stromberg-Stein J. nor the Court of Appeal referred to the Danyluk factors in their respective analyses.

The majority in Figliola went on to hold that the tribunal had exercised the discretion granted by s. 27(1)(f) unreasonably:

[46]                          This brings us to how the Tribunal exercised its discretion in this case.  Because I see s. 27(1)(f) as reflecting the principles of the common law doctrines rather than the codification of their technical tenets, I find the Tribunal’s strict adherence to the application of issue estoppel to be an overly formalistic interpretation of the section, particularly of the phrase “appropriately dealt with”.  With respect, this had the effect of obstructing rather than implementing the goal of avoiding unnecessary relitigation.  In acceding to the complainant’s request for relitigation of the same s. 8 issue, the Tribunal was disregarding Arbour J.’s admonition in Toronto (City) that parties should not try to impeach findings by the “impermissible route of relitigation in a different forum” (para. 46). 

Ironically, the "underlying principles" identified by the Court were transformed into a three-factor test just as rigid and formalistic as the test for issue estoppel applied by the BC Human Rights Tribunal!

The minority came to the same conclusion on the merits, but for slightly different reasons (see para. 92 for a summary on the interpretation of s. 27(1)(f) and para. 97 for a summary on the exercise of discretion).

So it seems to me that the minority in Penner over-emphasizes the effect of Figliola. In no way, shape or form did the majority in Figliola attempt to depart from Danyluk. In fact, the majority went out of its way not to do so. Accordingly, Danyluk remains good law on issue estoppel, though perhaps less pertinent when esoteric statutory provisions are at issue.

Accordingly, the majority's conclusion in Penner on this point seems sensible:

[31]                          Issue estoppel, with its residual discretion, applies to administrative tribunal decisions.  The legal framework governing the exercise of this discretion is set out in Danyluk.  In our view, this framework has not been overtaken by this Court’s subsequent jurisprudence.  The discretion requires the courts to take into account the range and diversity of structures, mandates and procedures of administrative decision makers however, the discretion must not be exercised so as to, in effect, sanction collateral attack, or to undermine the integrity of the administrative scheme.  As highlighted in this Court’s jurisprudence, particularly since Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 S.C.R. 190, legislation establishing administrative tribunals reflects the policy choices of the legislators and administrative decision making must be treated with respect by the courts.  However, as this Court said in Danyluk, at para. 67:  “The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.”

If anything, the problem here is the approach taken in Figliola, which might be described as reverse formalism. Sometimes, when they are unsympathetic to the administrative process, courts impose the formalities of legal doctrines on administrative decision-makers. In Figliola, however, the Court condemned the decision-maker for focusing on the formal aspects of the doctrine of issue estoppel rather than the "underlying principles" it identified, and proceeded to impose a different doctrine -- no less rigid or formal -- on the decision-maker.

An appropriately deferential approach would permit an administrative decision-maker to follow a formal approach if it felt that doing so would further its statutory purposes. Clearly, the BC Human Rights Tribunal thought that treating Mr. Figliola's complaint would do so. For the Court to subsequently impose a different inquiry on it seems quite wrong as a matter of principle.

This dovetails with the suggestion in my previous post that focusing on legislative intent -- in particular, the purpose of the statutory scheme(s) at issue -- would be preferable. My suggestion applies to administrative decision-makers who have to decide whether they should treat a complaint that has already been addressed in a different forum. I freely admit that this is hardly a recipe for uniformity across Canada. Different decision-makers will doubtless reach different conclusions on the appropriate components of issue estoppel and the other finality doctrines. But so what? These decision-makers have been entrusted by legislatures with statutory mandates (which are often quite different). They should be allowed to discharge them. 

At present, there are parallel approaches to issue estoppel and administrative decisions: the Danyluk factors and the Figliola factors, which presumably apply to any statutory provision that 'reflects the principles' of the common law finality doctrines. Working out which set of factors applies and when will doubtless be difficult. Nonetheless, the problem is created by Figliola, not by Penner. Hopefully, reviewing courts will be deferential in treating applications of issue estoppel by administrative tribunals.

If you have come this far, you will enjoy this paper by Laverne Jacobs: Figliola, Competing Jurisdiction, Shared Governance, and Protecting Human Rights in the Canadian Administrative State.

Lastly, a fun fact. Counsel for one of the intervenors in Figliola was a Mr. Penner. Presumably no relation.