Regulators frequently retain expert witnesses to assist them in evaluating complaints or concerns and in establishing a breach of standards or an allegation of incompetence at discipline. Are such experts immune from counter proceedings should a case not be established at discipline? That was the issue in Touchette c. Conseil de discipline de l’Ordre des psychologues du Québec, 2022 QCCA 1498 (CanLII).
In that case, the registrant, who was the subject of an adverse expert opinion by the expert witness, was successful at discipline. That registrant then filed a complaint against the expert witness (who was also a registrant with the same regulator). The Quebec Court of Appeal held that the expert witness was statutorily immune from the complaint even though their role was not explicitly mentioned in the immunity provision. While much of the Court’s reasoning was based on the specific wording of the immunity provision, the Court placed the issue in the context of the regulator’s public interest role in investigating complaints.
Most regulators would agree that their ability to recruit individuals to assist in investigating, screening, and proving concerns would be significantly more difficult if the individuals did not have immunity for their services.