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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. March 21, 2011 • Law TiMes Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Enough of scandals and severance are compounding the spending prob- lems with what the public believes are outrageous severance packages for fi red employees. Former Toronto Community Hous- A ing Corp. CEO Derek Ballantyne, who lost his next job at Build Toronto Inc. following the outcry over inappropri- ate spending at the TCHC, likely re- ceived a generous severance package. We'll probably have to do the same for his successor, Keiko Nakamura. In the meantime, disgraced former federal public sector integrity commis- sioner Christiane Ouimet received a $534,000 departure package follow- ing a scathing audit of her offi ce. In addition, the province paid out plenty of money in the wake of the eHealth Ontario scandal sparked to some de- gree, as many people will recall, over a s outrage grows over repeated scandals and incompetence by public offi cials, governments consultant's billing of $3.99 for Choco Bite treats. Th ere are many issues at play here. Is it worth it to pay out so much in sever- ance given that there's not always as much proof of actual money wasted as the hype would have us believe? Certainly, City of Toronto auditor general Jeff Griffi ths was right to criticize the TCHC for in- appropriately spending money on things like Holt Renfrew chocolates and shoddy procurement activities. But in his con- clusions in one of his reports, he noted that taking action on employee expenses would save $200,000 a year. On procure- ment, he said savings of $4 million to $10 million "may be possible." Th e public outrage is certainly legiti- mate. But if that's the case, why are we paying out so much to the people who let the problems happen in the fi rst place? Contract law is the quick answer. Fired executives could sue, so settling the matter by paying severance is an easy solution. But there's an inherent inequality involved here as executives get gener- ous severance packages under common law while a fast-food employee fi red for something as simple as showing up late a few times likely falls under the comparatively meagre provisions of the Employment Standards Act. Why do public-sector executives who screw up get so much while others get so little? Certainly, executives' bargaining power to negotiate generous termina- tion provisions is key. But given the unsatisfactory result of watching people who mess up receive big severance pack- ages, perhaps it's time to consider alter- natives. In particular, we should judge every public dismissal on its own merits, rather than according to media hype and the views of gravy-seeking politicians like Toronto Mayor Rob Ford. It was wrong to spend money on Holt Renfrew treats, but did TCHC executives other- wise do a good job, particularly through the agency's landmark remake of Re- gent Park? If their actions were so bad to meet the very high standard for fi r- ing them with cause, then let them go with no severance. If that's not legally justifi able, issue warnings to executives, discipline them, and take the auditor's report as a learning opportunity for all public agencies and a chance to revamp and enforce the spending rules. It's hard to get around laws and con- tracts, but scapegoating public employees over chocolates and brownies while pay- ing them anyway isn't fi scally responsible either. At the very least, if we truly believe there's so much gravy out there, maybe it's not worth it for governments to accept employees' demands for generous termi- nation clauses in their contracts. Until we deal with the broader spending issues, maybe they should get the same termi- nation treatment as fast-food employees. Th ere's some gravy for Ford to deal with. — Glenn Kauth goal that a litigant ought not to be harassed twice for the same cause. Th at's a worthy goal. But suppose the application of issue estoppel goes contrary to public policy by discouraging victims of police misconduct from pursuing complaints against offi cers? Th at, I fear, is precisely what will result from the Ontario Court of Appeal decision in Penner v. Niagara (Police Services Board). Wayne Penner was arrested in court by two Niagara police offi cers after making comments from the body of the court dur- ing a minor hearing involving Penner's wife. His conduct wasn't suffi cient to cause the presid- ing justice of the peace to order him to leave the courtroom or direct court security or police to arrest him. While the reported decision doesn't specify the facts in a detailed fashion, it appears that either the police offi cer who Restrict use of issue estoppel in complaints against police T he legal doctrine of issue estoppel is intended to further the public policy issued the ticket against Pen- ner's wife or another offi cer in court on an unrelated matter asked him to leave. Penner ap- parently pulled away when the offi cer put his hands on him and was arrested for causing a disturbance in the courtroom. Penner's encounter with the police was clearly not without in- cident. Photos taken after police had taken Penner to the station show scrapes and bruises on his face, a black eye, and other injur- ies. Penner subsequently fi led a complaint under the Police Ser- vices Act claiming police used unnecessary force and made an unlawful arrest. A retired police superintendent conducted the hearing and concluded the offi - cers had reasonable and probable grounds to detain Penner and that there had been no unneces- sary use of force during the arrest or at the police station. In addition to fi ling the com- plaint, Penner also commenced an action seeking damages for Social Justice By Alan Shanoff false imprisonment, malicious prosecution, unlawful arrest, and the unnecessary use of force. Th e purpose of a complaint under the Police Services Act is to determine if an offi cer is guilty of misconduct and should face discipline. Th ere can be no award of fi nancial compensation even if the proceedings result in a fi nding of guilt. Th e purpose of a civil lawsuit against a police offi cer relates to fi nancial compensation for an alleged victim. Acknowledging that disciplin- ary matters and civil lawsuits have diff erent purposes, that Penner had no fi nancial stake in the Po- lice Services Act hearing, and that he didn't direct the proceedings, www.lawtimesnews.com the appeal court upheld the motions judge's ruling apply- ing issue estoppel. Yet there's no doubt the Court of Appeal was correct in fi nding compliance with the three preconditions to permit application of issue es- toppel. Even so, once the three requirements have been satis- fi ed, the court retains discretion to not apply the doctrine. In this case the appeal court decided it wouldn't be unjust to apply issue estoppel due to the expertise of the decision-mak- er, the right of appeal under the Police Services Act, and Penner's active participation in the hearing. Forgotten in all of this is the fact that Penner did suff er physical harm during or after the arrest at the hands of police. Also, there's no evi- dence Penner had any warning that fi ling and pursuing the disciplinary complaint could prejudice any civil action. Th e real problem in the de- cision is that it may result in a reluctance to fi le complaints against police. While it may be an aberration, we seem to be facing an epidemic of complaints of police misconduct. One way to combat police misconduct is the restrictive application of issue es- toppel so as to permit both Police Services Act complaints and tort actions. Th e Penner decision may result in fewer disciplinary com- plaints and more lawsuits, some- thing we shouldn't encourage. Unless the Supreme Court reverses this decision, anybody contemplating fi ling a complaint against police should be aware that commencing disciplinary action may prejudice any subsequent civil lawsuit. As a result, complain- ants should seek legal counsel before pursuing a case. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com.