Lara Greenough and Sheila Mecking

Board members, directors, committee members, employees and anyone acting for a regulatory body or under its governing legislation, all have the obligation to act and make decisions in good faith. The governing legislation for most regulatory bodies will therefore often include what is called an “immunity clause” – this provides legislated protection from being held liable for damages resulting from good faith actions. In the event that a regulatory body and/or individual acting under its governing legislation are sued, they should look to these immunity provisions as a first defence.

The recent decision of McCloskey v New Brunswick Police Commission et al, 2021 NBQB 086  from the New Brunswick Court of Queen’s Bench is good example of the importance of acting in good faith and the use of such an immunity provision as a complete defence to a lawsuit.

The McCloskey Case

The McCloskey case arose from a conduct complaint filed under the New Brunswick Police Act.  The complaint was filed against Mr. McCloskey, the former Saint John Deputy Chief of Police and contained allegations respecting Mr. McCloskey’s actions during the Richard Oland murder investigation and lead up to the trial.

The complaint was processed by the New Brunswick Police Commission but before the parties proceeded to arbitration on the merits of the complaint, Mr. McCloskey retired, resulting in loss of jurisdiction under the legislation and an end to the conduct complaint process.

Years later, Mr. McCloskey sued both the Police Commission and its former Executive Director for negligence and misfeasance in public office in the processing of the conduct complaint. His objections related primarily to procedural decisions made by the Police Commission, a number of which, Mr. McCloskey alleged, did not comply with requirements set out in the Police Act. He also alleged that various administrative steps taken by the Defendants in advance of the receipt of an investigator’s report (such as confirming availability of a board member for a settlement conference) showed bias by the Defendants.

The Police Commission and its Executive Director argued everything done in the processing of the conduct complaint was done in good faith – with a staff of only three persons and tight legislative timelines, it was common practice to ensure administrative arrangements were in place should a complaint continue after an investigation report was received.

The Defendants brought a motion to have the action dismissed on the basis of s. 33.1 of the Police Act which provided: “No action lies for damages or otherwise … in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith, under this Act”.  The immunity provision applied to actions and omissions by both the Police Commission and its former Executive Director.

Mr. McCloskey argued that the Defendants had acted in bad faith so the Court reviewed all of the facts pleaded by Mr. McCloskey to determine whether, if true, they rose to the level of bad faith conduct sufficient to “defrock” the Defendants of their statutory immunity.

The Court found the facts alleged did not amount to bad faith and ruled that the immunity under s. 33.1 of the Police Act was a complete bar to the action. The Court further held that an appeal process respecting the decisions made in the processing of the conduct complaint was available to Mr. McCloskey by proceeding to arbitration rather than retiring and/or seeking judicial review, but that McCloskey chose to forego those processes and sue instead.

The action was dismissed with costs to the Defendants.

Key takeaways

This decision is a win for regulatory bodies and highlights the importance of being familiar with what legal protection is available for you. Immunity may extend to include board members, committee members, investigators, employees and more, depending on the wording of their particular legislation.

The policy behind such immunity provisions is to ensure that regulatory bodies are able to function efficiently without the threat of lengthy and expensive litigation where they are acting in good faith.  Further, with respect to complaints proceedings like the McCloskey case, members who are at the subject of the complaints should have to exhaust the administrative procedures available to them before resorting to a court action.

Dealing with these types of actions through strategic use of preliminary motions, as was done in the McCloskey case, can help avoid other typical litigation expenses such document exchange and examination for discovery. Should you or your organization be faced with such a legal action, Stewart McKelvey has the experience and expertise to assist you.

This article is provided for general information only. If you have any questions about the above, please contact one of the authors.