March 18, 2015

Inquiry: Investigators for regulatory bodies are protected from defamation claims by “absolute privilege”

Administrative Law
Inquiry and Investigations
Professional Regulation
Regulator Liability

Where an investigator for a regulatory body sends emails to two complainants who have alleged fraud against a member, the investigator may be protected from a claim for “defamation” arising from the content of his emails (e.g., where he confirms to the recipients that the body is prosecuting the member for professional [mis]conduct for the fact that he recklessly [carried out certain conduct]”), based on the defence of “absolute privilege”. That defence – a defence which recognizes that people in particular positions, such as investigators for regulatory bodies, must be immune from lawsuits for their saying things that may lessen someone’s reputation, even where the plaintiff alleges “malice” – was accepted by the Ontario Court of Appeal in D’Mello v. Law Society of Upper Canada, 2014 ONCA 912:

“[18] … An official of the Law Society who is investigating a complaint about a lawyer is engaged in furthering the public interest in ensuring that lawyers maintain high standards of conduct and do not abuse their position. If such persons were not granted absolute privilege in defamation actions, their mere allegation of malice on the part of the lawyer being investigated could subject them and the Law Society to costly and lengthy litigation requiring them to justify why an investigation into a complaint was warranted. Such an approach would be inconsistent with the overarching goal of protecting the public through the responsive and timely investigation of complaints.”

The court rejected the member’s argument that because the enabling statute in that case (the Law Society Act, R.S.O. 1990, c. L.8) protected officials for any acts done in good faith, the investigator was only protected to the extent of his acting in good faith, but not immune to a claim that the member had acted with malice.* The court instead found that the common law defence of absolute privilege and the statutory defence of good faith were intended to co-exist (following the approach taken by the BC Court of Appeal in Schut v. Magee, 2003 BCCA 417).

* NB: We also note a recent Ontario ruling that if a member or registrant alleges that a regulatory body or official has acted with malice, the member or registrant, in order to overcome any statutory provision protecting officials who act in good faith, must also “set up material facts required to plead bad faith, malice or bias”. Without those material facts, the regulatory body will be protected by immunity: Isaac v. Law Society of Upper Canada, 2014 ONSC 6813 at para. 55-56.

D’Mello v. Law Society of Upper Canada, 2014 ONCA 912

Lisa Fong and Michael Ng