BC Supreme Court clarifies test to determine when a tribunal is sufficiently quasi-judicial to attract the protection of complete privilege

By way of background, both the plaintiff and the defendant Mansouri were professional immigration consultants regulated by the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The defendant Mansouri made a professional misconduct complaint about the plaintiff to the ICCRC and the defendant Mohammadi was a witness to the conduct at issue in that proceeding.

In the Notice of Civil Claim the plaintiff alleged that the defendants had defamed him based on statements made within the context of the ICCRC complaint and resulting investigation.  He further alleged that the defendants, including the corporate defendant, were liable in negligence.

The defendants applied pursuant to Rule 9-5 to strike and dismiss the plaintiff’s claim as disclosing no reasonable claim, primarily on the basis that the ICCRC was a quasi-judicial body and the defendants’ statements were made on occasions of absolute privilege, which is a defense to all claims.

In granting the application at Seyedalikhani v Mansouri, 2023 BCSC 1902, Justice Giaschi considered and clarified the test for when a tribunal or body is sufficiently quasi-judicial to attract the protection of absolute privilege, writing at paragraph 60:

[…] I agree with the plaintiff that the test is not simply whether the tribunal or body in issues has the power to determine legal rights and to affect the status of the parties appearing before it. As set out in Swilto, the test is more nuanced. It involves several considerations or factors, namely:

1.       The source of the authority of the body, or as Lord Diplock says, is it a body recognized by law?

2.       The subject matter of the body’s jurisdiction. Are the questions that come before it similar to what comes before the courts?

3.       The processes and procedures established by the body. Does it have processes and procedures similar to a court?

4.       The nature of the decisions made by the body. Do those decisions determine the rights or affect that status of the parties?

5.       Ultimately, in the particular circumstances, does the public interest in granting absolute immunity demonstrably outweigh the public interest in permitting those wronged the right to pursue a remedy? [i]

After analyzing each of these factors, the judge went on to hold that the ICCRC met that test. He further held that the negligence claim and the claim against the corporate defendants were “woefully deficient”, and that the claim could not be saved by a proposed amendment.

Finally, Justice Giaschi accepted the defendants’ submission that special costs were warranted for two reasons: (1) it was plain and obvious from the outset that the claim was bound to fail; and (2) the plaintiff had an improper purpose and motive in commencing and continuing the action, namely to intimidate the defendants and dissuade them from cooperating with the ICCRC disciplinary proceedings.

For more information, please contact Joseph Ensom.