As a general rule, regulators can only be sued for damages if they act in bad faith. When a person sues a regulator they must give particulars of the bad faith that they allege occurred. Many actions against regulators are dismissed where the bad faith is pleaded too baldly. In Robson v The Law Society of Upper Canada, 2018 ONCA 944, <http://canlii.ca/t/hw70d> the Ontario Court of Appeal allowed an action for malicious prosecution and misfeasance in public office to proceed against the regulator and some of its employees. In this case, the practitioner claimed the investigation and prosecution had been conducted in bad faith in that the regulator had deliberately cherry-picked comments made by a court that the regulator knew to be false, and had deliberately avoided interviewing witnesses during the investigation that would be favourable to the practitioner in order to retaliate against the practitioner who was a thorn in their side. The Court accepted that sufficient particulars had been alleged against the regulator. The proceeding was permitted to proceed to the discovery stage. The Court emphasized that it was making no evaluation of whether these allegations were true; that assessment would occur later in the process.
Interpreting Legislation vs Making Legislation
Regulators cannot enact legislation through policy. However, regulators frequently publish policies interpreting or applying their legislation. The line between those two activities is sometimes fine.