Lawsuits for Failure to Act on a Complaint

Two recent decisions in different provinces and different contexts reiterate the same principle: regulators and investigators cannot be sued for failing to act on complaints.

In Fariad v. Toronto Police Services Board, 2021 ONSC 374 (CanLII), the police investigated a complaint of assault. Following the investigation the officer chose not to lay charges. The complainant sued arguing that while the officer had broad discretion as to whether to lay charges, that discretion was not exercised for proper purposes in this case. The Court struck out the claim on the basis that the police officer’s duty was to protect the public interest generally and not to the individual complainant. The complainant’s remedy, if there was one, was to make a misconduct complaint against the officer.

Similarly, in Lu v Real Estate Council of British Columbia, 2021 BCSC 109 (CanLII), an individual sued the regulator for failing to investigate complaints. They claimed that failure to do so resulted in financial losses to them. The Court struck out the claim as there was no cause of action against a regulator for failing to investigate a complaint. Regulators choose to take action, or not, with a view to the public interest in general and not out of any legal duty to the individual complainant. The immunity provision also protected the regulator.

Prudent regulators view complainants as a valuable resource to their regulatory activities. However, they do not act on behalf of complainants.

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