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Misconduct by Regulator: Quasi-Judicial Immunity Unless Mala Fide
Question: How does the malice exception to prosecutorial immunity impact legal claims against regulatory bodies?
Answer: The malice exception allows individuals subjected to regulatory investigations to pursue legal action if they can demonstrate that malicious conduct was involved, distinguishing between innocent mistakes and intentional wrongdoing. At Crystal Clear Legal Services, we assist clients in navigating these complex legal matters, ensuring that your rights are protected throughout the process. Contact us today to learn how we can help you.
Malice Exception to Prosecutorial Immunity
Regulatory bodies that oversee different professions, along with the employees thereof, are provided with immunity from liability for errors in judgment or decisions made during investigative or disciplinary proceedings with an exception for when malice, rather than innocent error, is involved.
The Law
Regulatory bodies and the personnel thereof receive immunity from liability via codification within the relevant empowering statute law or via the absolute privilege principles applicable to quasi-judicial proceedings in common law. The Law Society Act, R.S.O. 1990, c. L.8, provides an example of an immunity provision within an empowering statute while the common case of Dechant v. Stevens, 2001 ABCA 39, provides an example of the absolute privilege applicable to regulatory bodies as well as the employed persons thereof who act in a quasi-judicial capacity, whereas each state:
Liability of benchers, officers and employees
9 No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.
[36] Canadian courts have held that the disciplinary processes of Law Societies can fall within the ambit of quasi-judicial proceedings. Consideration of the role of the Law Society began with the Supreme Court of Canada decision in Harris v. Law Society of Alberta, 1936 CanLII 18 (SCC), [1936] 1 D.L.R. 401 S.C.C.) at 414 where Rinfret J. said:
It is obvious that the Benchers were acting in good faith. They were only “endeavouring to do their duty to the public and the profession.” Now, provided they take the proper course, and within the conditions specified by the statute, the Benchers have the power to order the striking of the name of a member from the rolls of the Society. In the exercise of those powers, they perform a function not merely ministerial, but discretionary and judicial.
This decision, however, did not deal with absolute privilege and instead considered whether the professional body could be liable for damages for wrongful disbarment. In concluding that the Law Society could not be liable for damages, the court not only noted that the Law Society’s decision-making functions were discretionary and judicial, but also emphasized that the professional body acted in good faith. Thus, while the Law Society is protected from suit, the protection specifically involved a good faith component.
[37] Following the Supreme Court’s decision in Harris, the Ontario Court of Appeal in French et al. v. The Law Society of Upper Canada (1975), 1975 CanLII 40 (ON CA), 61 D.L.R. (3d) 28 (Ont. C.A.) found that the investigative functions of the Law Society, as well as the selection of the Discipline Committee, were quasi-judicial in nature. In particular, Lacourciere J.A. noted, at 32 that “[t]he investigative function of the Law Society and the preparation and swearing of the complaints against the appellant solicitor were discretionary and quasi-judicial acts.” Notably, the court cited Harris, with approval, as authority for the proposition that the Law Society would not be liable for erroneous exercise of its discretion, if it acted bona fide and without malice.
Conclusion
If a person who was subjected to the investigative or disciplinary processes of a regulatory body wishes to bring a lawsuit against the regulatory body or those persons who were acting on behalf of the regulatory body, evidence of malicious conduct is required whereas immunity from liability for innocent mistakes exists.