3.68: Court options to deal with significant deficiencies

Case Summary

The Appellants (the “Ouellettes”) appealed the Decision of Master Robertson striking their Amended Statement of Claim (the “Claim”) against the Law Society of Alberta (the “LSA”), pursuant to Rule 3.68 on the grounds that there was no claim in law.

The Plaintiff, Mr. Christian Sylva Ouellette (“Mr. Ouellette”) is a former member of the LSA and was disbarred in 2016 following a disciplinary hearing. Mr. Ouellette and Mr. Ouellette’s son were suing the LSA in the underlying Action seeking a declaration that the disbarment decision was void ab initio (due to the actual bias or, in the alternative, reasonable apprehension of bias), reinstatement, Charter damages as well as other relief. Mr. Ouellette’s son was also suing for damages arising out of the loss of parental guidance, which he claims was caused by the proceedings against his father.

Justice Phillips noted that generally it is difficult to succeed in an Action for damages against a regulator such as the LSA. First, Charter breaches do not necessarily lead to an award of Charter damages. Second, policy reasons may militate against the existence of a private duty of care owed by a regulator. Protection from lawsuits is important to control the depletion of resources and the potential chilling effect that it could have on a regulator or generally with respect to quasi-judicial decision making. These policy reasons can negate a prima facie duty of care owed by a regulator.

Phillips J. also noted that statutory and common law immunity further restricts the ability to sue a regulator and that, in order to overcome the immunity granted under the Legal Profession Act, RSA 2000, c L-8 (the “Act”), a Plaintiff must first establish a supportable claim as well as an absence of good faith, for instance by proving malice or bad faith. In other words, and as stated by Master Robertson, a regulator cannot be sued when doing its job.

Justice Phillips reviewed the relevant jurisprudence and found that the case law made it clear that the LSA did not owe a private law duty of care to Mr. Ouellette or his son. Additionally, Justice Phillips found that the case of Merchant v Law Society of Alberta, 2008 ABCA 363 (CanLII) was instructive for the proposition that the usual rule is for a litigant to exhaust all appeal processes within the Act prior to commencing a claim (which had not taken place). In other words, for the Court to go outside the Appeal process of the LSA in this case would be a collateral attack and therefore an abuse of process.

Accordingly, Justice Phillips dismissed the Appeal, and Master Robertson’s Order striking the Claim was upheld.

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