Sep 23, 2020

Liability of Independent Legal Counsel

Clark v Hunka, 2017 ABCA 346 (CanLII)

The Alberta Court of Appeal indicates that it is almost impossible to find independent legal counsel (ILC) in discipline matters liable for malicious prosecution. In Clark v Hunka, 2017 ABCA 346, an accountant facing discipline objected to ILC because she was not truly independent. She prosecuted other cases at discipline before the same tribunal. The tribunal accepted that there was an appearance of bias created and directed a new hearing before a different panel with different ILC. Eventually, on appeal, the accountant had the proceedings stayed. The accountant sued ILC for malicious prosecution.

The Court dismissed the action as having no chance of success on two bases. First, an essential element of the tort of malicious prosecution is that the person initiated (or continued) the initial legal proceedings. ILC, as an advisor to the tribunal, does not have that role. This element could not be met.

Second, no particulars of malice against ILC were alleged. The Court held that “malice requires a willful and intentional effort on behalf of prosecutors to abuse or distort their proper role within the disciplinary system”. The Court said that “malice requires more than incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence”. A failure to appreciate an appearance of bias until it was raised does not constitute malice. In addition, malice would require actual bias, not an appearance of bias.

This second basis for the Court’s findings should be of assistance to prosecutors and tribunal members as well.