Oct 19, 2020

Uncertainty Continues for Regulators Defending their Reputations

Ontario College of Teachers v. Bouragba, 2019 ONCA 1028 (CanLII)

How should a regulator respond to a practitioner making repeated public accusations that it is acting with dishonesty and bad faith and was abusing its authority? While such statements might, in some circumstances, constitute professional misconduct, disciplining such practitioners can sometimes create an unsatisfactory appearance. Doing nothing or responding publicly to such communications can give the allegations more credence than they deserve. In Ontario College of Teachers v Bouragba, 2019 ONCA 1028, http://canlii.ca/t/j49mq the regulator opted to sue the practitioner for defamation.

However, there is protection from defamation suits by individuals who comment on a matter of public interest. This protection, called anti-Strategic Lawsuits Against Public Participation (SLAPP) legislation is intended to prevent well-resourced entities from using the courts to stifle criticism. Anti-SLAPP protections have three criteria:

1. The comments were on a matter of public interest.

2. The defamation suit can still proceed where it has substantial merit and there is no defence.

3. The public interest in permitting the proceeding to continue outweighs the public interest in protecting the comment.

The regulator argued that the practitioner’s comments were private grievances about proceedings that had not gone the practitioner’s way. The Court held that while there was some truth to this, the comments also contained a public interest element about whether the regulator was acting appropriately. For example, some of the communications were to relevant Ministers in the government calling for a public inquiry. On this portion of the SLAPP criteria, the motives of the practitioners were irrelevant (although those motives were relevant to the third part of the test).

As such the Court held that the first portion of the test should be resolved in favour of the practitioner. The Court returned the matter to the lower court to evaluate the second and third parts of the test. Thus uncertainty continues for regulators as to how best to respond to unfair criticism that undermines its reputation for integrity.