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
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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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