To establish a cause of action against a regulator for malicious prosecution, the plaintiff has to, obviously, plead and establish malice. In Bahadar v Real Estate Council of Alberta, 2019 ABQB 633, http://canlii.ca/t/j1z2v the practitioner alleged that the regulator, members of their staff, the disciplinary tribunal and the regulator’s lawyers had been malicious in pursuing a discipline matter against him. The particulars of malice included such things as proceeding with the investigation and prosecution knowing they did not have a case, proffering evidence they knew to be false and concealing relevant information from the practitioner.
The regulatory defendants brought a motion to dismiss the action on the basis that no malice had been pleaded. For the purposes of the motion, the Court had to accept the pleadings as true. The Court indicated that what constitutes malice “is a difficult and murky issue”. The Court held that while it was not certain that these facts, if true, constituted malice, the Court was not in a position to say that the facts do not constitute malice. The case was allowed to proceed.