Immunity for Witnesses in Quasi-judicial hearings
In Ouellette v. McCann 2023 ABKB 497 the court had opportunity to weigh in on immunity for witnesses in law society hearings and other quasi-judicial hearings.
Mr. Ouellette and Mr. McCann are both lawyers and were opposing counsel on a family law file.
As a part of representing their clients, the lawyers reached a partial settlement of the action. As a part of the settlement, each lawyer held funds in his respective trust account.
In September 2005, Mr. Ouellette's client, who owed him approximately $16,000.00 in legal fees, left town without a forwarding address.
Months later, Mr. Ouellette and Mr. McCann spoke over the telephone. Mr. Ouellette claimed that Mr. McCann agreed that Mr. Ouellette could pay Mr. Ouellette's outstanding account from the monies held in Mr. Ouellette's trust account.
A year after the call, Mr. Ouellette sent the balance of the funds to Mr. McCann. Mr. McCann ultimately took the position that the funds sent over were insufficient.
A year after the funds were sent over, Mr. McCann filed a law society complaint against Mr. Ouellette. The complaint pertained to the shortfall in trust monies received from Mr. Ouellette.
In May 2010, the law society held a hearing and both lawyers testified. As a result of that hearing and the evidence that Mr. McCann gave to the law society, Mr. Ouellette was found guilty under the law society’s rules.
Following the law society hearing Mr. Ouellette filed an action with King’s Bench alleging that Mr. McCann testified fraudulently during the law society hearing by denying that he agreed to Mr. Ouellette's payment of legal fees. Mr. Ouellette argued that Mr. McCann was trying to cover up his mistake in agreeing to Mr. Ouellette using the funds to paying his bill, without Mr. McCann having checked with his client first. As a part of his claim, Mr. Ouellette put emphasis on the fact that there was a memo on Mr. McCann’s file noting agreement to Mr. Ouellette paying his bill from the funds in trust.
As a part of hearing the King’s Bench action, Justice Prowse cited several cases which suggested that witnesses in quasi-judicial hearings (read: the law society hearing) are entitled to absolute immunity.
Justice Prowse dismissed Mr. Ouellette’s action, and found that Mr. McCann had absolute immunity.
Justice Prowse noted that the law of perjury provides a sufficient remedy for false statements and implied that it would be unnecessary to have the bad faith witness also face civil liability. As a part of defending a civil liability claim, a person may need to show they acted in good faith. Good faith is typically something that requires a trial to be proven, which is costly.
Justice Prowse expressed concern that if the court permitted the sort of claim before it, and granted additional remedies for inaccuracies in testimony given in quasi-judicial hearings—it might have a chilling effect on members of the public being able, and well-placed, to bring forward complaints against regulated professionals (read: lawyers).