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Misconduct by Regulator:
Quasi-Judicial Immunity Unless Mala Fide
Question: What is the malice exception to prosecutorial or regulatory-body immunity in Ontario?
Answer: In Ontario, regulators and their staff are often shielded from civil liability for actions taken in good faith during investigations or discipline, but that immunity can be challenged where there’s evidence of malice rather than an honest error in judgment. Hall Paralegal Services provides Ontario paralegal services to help you assess whether the facts support a malice-based claim, identify what evidence is needed, and plan next steps within applicable limitation periods.
Malice Exception to Prosecutorial Immunity
Regulators as licensing bodies of various professions, and the persons employed therein, are generally protected from potential liability for errors in judgement or other decisions within investigative processes or disciplinary processes subject to the exception arising from malicious behaviour.
The Law
A regulatory body as well as the personnel employed or engaged by the regulatory body will, generally, be immune from liability via codified provisions within the statute law that empowers the regulatory body or via common law principles involving the absolute privilege that applies to quasi-judicial proceedings. 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.
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