David Debenham, Partner – McMillan LLP
Canada has recognized a right to sue public and private investigators for conducting a negligent investigation, unlike any other jurisdiction in the Commonwealth. Is that a bad thing? One instinctively says “of course it is”. Doing a forensic investigation that passes muster in a court of law is an extremely difficult task, made harder if we have to worry about not only being sued by our client or employer, but also by “the other side”. Canadian courts have made a difficult job, impossible. Or so it would seem.
Professionals have been liable for negligence since the 1950’s. Every profession has initially felt the same way about being sued: It is unfair, unnecessary, and the cost of malpractice insurance will be the ruination of the profession. Surgeons have a difficult job, trial lawyers have a difficult job (we lost our immunity in Ontario in the 1960s, in the United Kingdom they lost it last year), and yet these professions soldier on, and are arguably better for it. The argument supporting liability is simple. Negligence suits act as a private police force, ferreting out cases of malpractice that professional bodies fail, or refuse, to investigate. Because sunlight is the best disinfectant, lawsuits lead to transparency in a profession, leading to better regulation of the profession in terms of better rule making and better enforcement. Because lawsuits affect malpractice insurance, all members of the profession have an interest in the better policing of their colleagues by the self-regulating bodies in order to keep rates low. Failing to address unprofessional behavior simply promotes more of it. Sympathic regulators who take the view “there but for the grace of God go I”, take a more activist response when it is their own, and their colleagues malpractice rates that go up because of unprofessional behaviour. Better policing and more lawsuits acts as a better business bureau, with incompetent or unethical professionals being driven out of business by the regulator or the cost of malpractice insurance, thus protecting those who follow the standards of the profession, as the standards of the profession are, almost inevitably, the standard of negligence applied by the court. The common need to keep malpractice insurance in check also leads to the professional regulator promoting continuing professional education, and audits of professional practice, to maintain a standard of professionalism. For all of these reasons, forensic investigators should think twice before they adopt a negative view of the tort of negligent investigation, the quintessentially Canadian tort. Professional responsibility entails professional liability.