Several court decisions indicate that a complainant enjoys a legal privilege when filing a formal complaint to a regulatory body and are immune from a civil action for any resulting damages caused by their complaint, such as defamation. However, it is less clear whether a complainant themselves can be disciplined for making a complaint in bad faith. The Court in Rappaport v. Law Society of Ontario, 2025 ONSC 431 (CanLII), neatly sidesteps the issue.
Mr. Rappaport obtained a very poor outcome for a client in a family law matter after using questionable tactics. One of the presiding Judges scheduled a motion to determine whether Mr. Rappaport should personally pay some of the costs of the litigation because of those tactics. Mr. Rappaport arranged for an affidavit to be filed on that motion that was “gratuitous” (in that its content was irrelevant to the motion) attacking the Judge’s competence, impartiality and integrity. A different Judge heard the motion and excluded the affidavit, calling it scandalous.
Despite not having to pay the litigation costs personally, Mr. Rappaport filed a complaint to the Canadian Judicial Council against the first Judge repeating the allegations he had made in the affidavit. Mr. Rappaport created a website providing information about his complaint against the Judge, which included sensitive personal information about his client. Mr. Rappaport maintained the website for over a year including well after the Canadian Judicial Council indicated that it would not be investigating the complaint.
The Law Society disciplined Mr. Rappaport for some, but not all, of his statements, suspending him for five months and awarding significant costs against him. The Court upheld the finding, sanction, and costs, substantially adopting the reasons of the Law Society Appeal Tribunal. No finding was made against Mr. Rappaport in respect of his complaint to the Canadian Judicial Council.
(NB The Appeal Panel had said that not making a finding about the complaint to the Canadian Judicial Council was “as it should be”. While the Court adopted the reasons of the Appeal Tribunal in substance, it did not comment on that specific statement.)
However, findings were made about the gratuitous and scandalous affidavit arranged for by Mr. Rappaport and about the contents of his website. The Court found that the Appeal Tribunal fairly balanced Mr. Rappaport’s freedom of expression rights under the Canadian Charter of Rights and Freedoms against the inappropriate nature of the assertions. The expression went far beyond being a fair criticism of the legal system and was instead gratuitous and made in bad faith. In addition, the posting of sensitive personal information about a vulnerable and unsophisticated client to advance Mr. Rappaport’s personal interests required more than the general verbal consent obtained from the client.
While this decision does not conclusively clarify whether a complainant can be disciplined for making a bad faith complaint, it makes clear that repeating the assertions (that form the subject of the complaint) in other contexts is not protected.