Making Complaints to Regulatory Bodies within the Protection of Absolute Privilege

When someone makes a complaint about a professional to a professional regulatory body, he or she can do so within the protection of absolute privilege, provided that certain safeguards are taken.  The protection of absolute privilege provides a complete defence to any civil claim arising from the complaint, including a defamation claim.

The defence of absolute privilege exists to protect the functioning of the judicial and quasi-judicial process and to encourage individuals to participate in the judicial or quasi-judicial process without fear of exposing themselves to civil action.

An occasion of absolute privilege exists if the purpose of the communication is sufficiently related to or necessary for the judicial or quasi-judicial proceedings.  Hence, a letter initiating a complaint to a regulatory body, correspondence to and from, or testimony given in relation to the proceeding, would be protected.  However, the protection of absolute privilege does not extend outside of the proceedings, and as such, discussing or republishing the complaint, submissions or evidence outside of the regulatory proceeding will not be protected by this defence.

The privileged occasion of absolute privilege exists even if the complaint is found to be without merit and is dismissed at an early stage long before there being any need for an inquiry hearing; this is because the purpose of the immunity would be undermined if absolute privilege only applied where the complaint leads to an inquiry proceeding:  Hung v Gardiner, 2003 BCCA 257.

An occasion of absolute privilege only exists where the body or society to whom the complaint is made is quasi-judicial in nature as opposed to merely administrative.  Hence, in Sussman v Eales, (1985) 33 CCLT 156; (1986) 25 CPC (2d) 7, the Court found that the manager of a nursing home was protected by an occasion of absolute privilege when making a complaint about a dentist to the Royal College of Dental Surgeons, but was not protected by an occasion of absolute privilege when forwarding a copy of the complaint to the Waterloo-Wellington Dental Society.

Publications that are not necessary to further the judicial or quasi-judicial process may in some cases be protected by an alternative defence of qualified privilege.  Qualified privilege provides a complete defence (even with respect to a defamatory statement that turns out to be untrue) provided the Defendant can establish that he or she had a duty or interest to communicate information to the recipient and the recipient has a corresponding “legitimate” interest to receive the information.  However, the defence of qualified privilege will fail where the defamatory comment was not reasonable and germane to the occasion, or where a plaintiff can establish malice.  Qualified privilege is often a more costly defence to pursue given that it allows a plaintiff to open up evidentiary issues that often cannot be resolved by way of Affidavit evidence, resulting in the need for a full trial.

It is therefore important when making a complaint about a professional to a regulatory body, or providing evidence to further a complaint, that one ensures that the communication is made only to the appropriate quasi-judicial body, and is not copied to disinterested parties.  When in doubt, before proceeding, seeking advice from a lawyer practising defamation can help you ensure that you can report the professional to the appropriate regulatory body, within the protection provided by absolute privilege.