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Singling Out Conduct: Prosecutorial Targeting of a Specific Person
Question: Could malicious prosecutorial misconduct result in legal action?
Answer: Yes, allegations of malicious conduct, such as being singled out during regulatory processes, can lead to legal claims against regulatory bodies, as shown in Conway v. Law Society of Upper Canada, [2016 ONCA 72]. Ensuring fair treatment is crucial to maintaining trust in the legal system—if you have experienced unfair treatment, exploring your options can help you seek justice.
Malicious Prosecutorial Misconduct By Singling Out
In legal systems, when a regulator or prosecutor exercises statutory powers, concerns may arise over whether the conduct demonstrates malice, particularly if a person is perceived as being singled out and is being treated differently from others. The Conway v. Law Society of Upper Canada, 2016 ONCA 72, case provides insights into how such issues may manifest and may be legally addressed.
Background
Within the Conway case, during the application process for paralegal licensing, the appellant raised allegations of unequal treatment thereby raising the question of whether such treatment demonstrated malice or an intent to harm, and thereby potential abuse of the statutory authority of the Law Society by singling out the appellant in a manner inconsistent with the treatment of other applicants.
Challenges
The Conway case illuminates significant challenges inherent in addressing allegations of malice and unequal treatment by regulatory bodies whereas such involves:
- The Inequality in Treatment:
The allegations that a regulatory body like a law society administers unequal treatment, singling out a person for distinct scrutiny, can be difficult to substantiate yet hold serious implications. - The Proving of Malicious Intent:
The establishing that actions stemmed from malicious intent requires substantial evidence, making these allegations complex and contentious in judicial forums. - The Implications for Regulatory Oversight:
The Conway case underscore the need for transparency and fairness in procedural conduct by regulators, thereby impacting public confidence and trust in such institutions.
Precedents and Implications
In Conway, while citing Dechant v. Law Society of Alberta, 2006 ABQB 908, the Court of Appeal highlighted the potential for allegations of singling out to support legal action via claims of abuse of public office. The court drew parallels with Dechant, highlighting that singling out, when done with intent to harm, could substantiate claims of malice. These case precedents demonstrate that unique treatment of a specific individual is a relevant factor when assessing regulatory misconduct. Specifically, in Conway, it was said:
[26] While, as the motion judge stated, “[a]llegations of ‘singling out’ may be no more than a regular carrying out of its duties against an individual” (para. 13), they, and some of the other allegations in the statement of claim, may also support a cause of action against the LSUC on the ground that the LSUC abused its statutory authority and acted in bad faith in its dealings with the appellant, namely, that the LSUC may have acted with malice or intent to harm.
[27] For example, in paragraph 182 of his statement of claim, the appellant complains of the uneven treatment that he received in relation to his paralegal application, pleading that the “LSUC singled out the appellant where it refused to process his application and denied his grandparent status. Although the issue came up during the course of the proceedings, LSUC has not named any other applicant who was treated in a like manner.”
[28] The appellant’s factual allegations of unequal treatment by the LSUC resemble those in the claim of the plaintiff lawyer in Dechant v. Law Society of Alberta, 2006 ABQB 908, which the Alberta Court of Queen’s Bench refused to dismiss. In that case, the parties had entered into a settlement of disciplinary proceedings. The plaintiff lawyer alleged in her statement of claim that she was “the victim of specialized and malicious treatment by the Law Society after the execution of the Settlement Agreement” (para. 10). The specific malicious and egregious actions that the plaintiff lawyer pleaded included that the Law Society treated her differently than other members with her status and that they impeded her efforts to practise law. The court held that the allegations of specialized treatment, among other actions by the Law Society, could support the claims that included abuse of public office.
Conclusion
The Conway case interpretation of malice within regulatory actions highlights essential jurisprudence on how allegations of singling out should be approached. By ensuring fairness and transparency, regulatory prosecutors can avoid potential misuse of regulatory powers. Courts continue to play a pivotal role in affirming accountability of regulatory bodies through thorough examination of claims alleging abusive conduct.
