Over the last few weeks we have explored the balancing act regulators may engage in when weighing what disclosure should be made to complainants. We first examined the general rules of disclosure and the requirements of procedural fairness (click here). We then looked at various concerns that may arise regarding disclosure to complainants (click here). Finally, we reviewed a recent judicial review of a decision of the Health Professions Review Board which dealt with the disclosure of a physician’s past conduct history to a complainant (see R.M. v. College of Physicians and Surgeons of British Columbia, 2011 BCSC 832 – click here).
This week, to round up the discussion we respond to the question, what if anything, a regulator can do if a complainant to which confidential or other information has been disclosed as part of a statutory investigation misuses the information, e.g., by publishing it to the general public, or using it in other litigation. If this occurs, and assuming a complainant has misused documents in a way that can be proven, what measures might a college or a registrant take to address such abuse?
The answer to the question will ultimately depend on the context of each situation and the applicable statutory regime, but generally, the ability to act will depend one or more of the following factors. First, some or all of the documents may be “confidential”, e.g., under the common law, or under a statutory provision like section 53 of the B.C. Health Professions Act. Secondly, the complainant may be said to have given an “implied undertaking” to the college (or to the reviewing body), implicitly but nonetheless solemnly promising he or she will not to use the documents except for purposes of the proceeding. Implied undertakings concerning documents are a recognized part of court proceedings in British Columbia, and the court has recently implied, in the context of an HPRB review, that implied undertakings form part of tribunal proceedings in BC: see R.M.
The exact nature of “undertakings” is somewhat less widely known, since few parties will contravene undertakings to courts, as courts can directly enforce undertakings given to them. The precise nature of undertakings becomes more important, however, when they are given to bodies other than courts. Undertakings are solemn promises:
(a) Undertakings may constitute a form of professional obligation when given by a professional (e.g., a breach of an undertaking will prima facie be a form of professional misconduct).
(b) Undertakings may amount to a promise to a court or tribunal by a party, such that a breach of undertaking may amount to an abuse of process that may prompt a tribunal to impose consequences on the promising party’s ability to participate in the proceeding, or seek court assistance.
(c) Undertakings may also give rise to civil obligations enforceable against non-professionals. For example, a court may recognize that an undertaking respecting property (like documents) amounts to “trust conditions” that a court may enforce. Additionally, the Court of Appeal has noted that “an undertaking may, or may not, contain all of the elements of a contract”: Hammond v. Law Society of British Columbia, 2004 BCCA 560.
Accordingly, an abuse might lead to a tribunal dismissing a complaint, or to a party or the tribunal seeking court assistance to enforce either confidentiality or an implied undertaking, to prevent the complainant from misusing information in documents. As the court recently noted in R.M., “[47] The deemed undertaking rule applies to administrative law proceedings…. If the implied undertaking is breached, a party can seek relief by way of an application for injunctive relief… or an application by the tribunal to invoke the aid of a superior court (…).This includes the power to punish for contempt.” The failure of a complainant to abide by a court order obtained by a party or the tribunal may amount to contempt of court.