December 2, 2010

Immunity of regulatory personnel from lawsuits and vexatious litigation

Administrative Law
Professional Regulation
Regulator Liability

To insulate college personnel from personal law suits which allege misconduct while carrying out duties, section 24 of the BC Health Professions Act provides that “no action for damages lies or may be brought” against a board member or a person acting for a board or college “because of anything done or omitted in good faith.”

The necessity of such immunity (as well as the limits of such immunity where a plaintiff alleges bad faith conduct) is illustrated in the Ontario case of Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248 (September 23, 2010), where the College revoked the claimant’s certificate of registration based on findings of professional misconduct and incompetence. The claimant sought special damages of approximately 2.3 million and general damages of 20 million dollars, alleging the defendants were grossly negligent, reckless, and lacked good faith. The action was the third of its kind making “essentially the same foundational claim” (para. 45).

Statutory immunity: The court noted that under s.38 of the Ontario Regulated Health Professions Act, the defendants were statutorily immune from suit, absent bad faith. As the plaintiff failed to plead any particular facts to support bald allegations of bad faith, statutory immunity applied.

Adjudicator Immunity: The court also found, with respect to allegations against the statutory tribunal members, that judicial or adjudicator immunity, which applies to both judges and tribunal members, “prohibits lawsuits against courts and tribunals based on their actions as adjudicators” (para. 61). Stemming from the concept of judicial independence, chairs of Committees enjoy judicial immunity with respect to their decisions (but not their decision processes) to allow them to conduct their roles “freely and impartially, without fear of suit” (para. 61).

Witness Immunity: Furthermore, with respect to the law suits against witnesses, the also noted that witnesses are immune, under the common law, from any action based on the premise that “witnesses should be free to make their statements and give their opinions or observations truthfully, without fear of being sued” (para. 57) and to ensure judicial resources are used efficiently by making “sure the courts will not be clogged with the re-litigation of issues that have already been decided in a trial” (para. 58).

Vexatious Litigants: Where claims have already been adjudicated, litigants are barred from using re-litigating, based on the doctrine of res judicata. Additionally, where a litigant makes essentially the same foundational claim in subsequent actions, it can be seen as a collateral attack on previous court findings and constitute an abuse of process, rendering the claim frivolous and vexatious in nature. “In deciding whether a litigant is vexatious, the court must look at the whole history of the matter, and not just whether there was originally a good cause of action” (para. 67), based on the factors enumerated in Lang Michener Lash Johnston v. Fabian, [1987] O.J. No. 355 (H.C.).

The court declared the claimant a vexatious litigant, granted the defendants’ motion to strike the claim, and granted the College’s application that the claimant be prohibited from commencing further litigation without leave of a judge of the Superior Court of Justice.

Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248 (September 23, 2010)