December 17, 2014

Professional regulatory bodies and malicious prosecution

Administrative Law
Professional Regulation
Regulator Liability

Claims of malicious prosecution seem inevitable for professional regulatory bodies, despite the difficulties that such claims present for claimants. A claimant must not only defeat the case for misconduct during a discipline proceeding, but also show both an absence of reasonable and probable cause, and malice, on the part of the “prosecution”. Malice requires more than recklessness or negligence; it requires a willful and intentional effort on the part of the prosecution to abuse or distort its proper role. The New Brunswick Court of Appeal has suggested, however, that claims of malicious prosecution ought not apply to professional regulatory bodies at all: Estabrooks v. New Brunswick Real Estate Association, 2014 NBCA 48.

After a real estate profession overturned a finding of professional misconduct on appeal to the court, the professional sued the regulatory body for malicious prosecution. A trial judge found the association liable, but the New Brunswick Court of Appeal overturned the finding. Apart from finding that the plaintiff had failed to allege malice on the part of any individuals – a necessary step for the court to find the association itself liable – Justice Larlee (Justice Robertson concurring) said that, “in my opinion, the discipline committees of self-regulating provincial professional associations cannot be sued by way of – and cannot be found liable for – the tort of malicious prosecution.”

The court examined the small number of Canadian cases where courts accepted the possibility of claims of malicious prosecution against professional regulatory bodies, as well as the English case of Gregory v. Portsmouth City Council, [2000] UKHL 3, [2000] 1 AC 419, where Lord Steyn concluded that the claim does not extend to disciplinary proceedings. Although the Privy Council later decided in 2013 that, under the law of the Cayman Islands, such claims should extend to civil proceedings, the New Brunswick Court of Appeal preferred the dissenting reasoning of Lord Sumption, who reasoned that such claims should not extend to civil proceedings. As Lord Sumption stated, “It is no answer to these concerns to say that the bar can be set so high that few will succeed. Malice is far more often alleged than proved. The vice of secondary litigation is in the attempt. Litigation generates obsession and provokes resentment. It sharpens men’s natural conviction of their own rightness and their suspicion of other men’s motives. … Whatever principle may be formulated for allowing secondary litigation in some circumstances, for every case in which an injustice is successfully corrected in subsequent proceedings, there will be many more which fail only after prolonged, disruptive, wasteful and ultimately unsuccessful attempts.”

The Court of Appeal concluded that “an action for malicious prosecution cannot lie against a provincial self-regulating disciplinary body for the actions taken by members of its disciplinary committee in the course of their duties.” [58]

The professional sought leave to appeal from the Supreme Court of Canada on September 25, 2014, but as of this writing, the court has not decided about leave.


Estabrooks v. New Brunswick Real Estate Association, 2014 NBCA 48

Lisa C. Fong and Michael Ng