Sep 23, 2020

Forcing Finney Farther from Fault Finding

Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 SCR 17

The case of Finney v. Barreau du Quebec, 2004 SCC 36 has puzzled regulators for more than a decade as it appeared to suggest that regulators could be ordered to pay damages in a civil suit for negligence. Finney appeared to be at odds with cases both before and after Finney that appeared to say that regulators are immune from a civil suit for damages unless they acted in bad faith. The case of Robson v Law Society of Upper Canada, 2016 ONSC 5579 provides yet a further distancing of the courts from Finney. Robson was found by the hearing panel of the Law Society to have engaged in professional misconduct and his licence was revoked. Robson succeeded before the appeal panel, which reversed the finding. The appeal panel declined to award him costs, however, finding that the prosecution had not been unwarranted. Robson sued both the Law Society and its individual representatives for negligence, malicious prosecution, and malfeasance (abuse of) public office.

In a motion to strike the pleadings, the Law Society succeeded on the basis that it and its representatives were immune from negligence claims and that there had been no particulars of how the defendants had acted in bad faith or for an ulterior purpose. The Court held that the Finney case turned on the concepts found in the Quebec Civil Code that did not apply to the common law concepts of malicious prosecution and malfeasance (abuse) of public office. However, the Court gave leave to amend the pleadings to enable Robson to try to plead the missing particulars. The Court rejected the notion that Robson was not in a position to plead those particulars until later in the proceedings; the regulator was entitled to know the case it had to meet. On the other hand, the Court also rejected the proposition that the appeal panel’s determination that the prosecution had not been unwarranted made the current proceeding an abuse of process or an inappropriate re-litigation of issues.