In Child Q (by Mother Q) v. Dr. A, 2026 BCHRT 114, the BC Human Rights Tribunal (the “Tribunal”) admitted a College of Physicians and Surgeons disposition letter as evidence in a human rights hearing, reprimand included, over the registrant’s four separate objections. Vice Chair Devyn Cousineau read s. 490 of the Health Professions and Occupations Act (“HPOA”) as a shield against compelling regulatory records and witnesses. It does not prevent a complainant from tendering a letter the college sent to her. The decision is worth attention from committees and staff who draft dispositions, because it treats those letters as available for use in other proceedings.
The complaint, twice over
Child Q, through Mother Q, alleged that Dr. A refused her gender affirming treatment because she is transgender, contrary to s. 8 of the Human Rights Code. Dr. A says he did not feel comfortable providing the treatment given his skills and experience, and his personal religious and cultural beliefs.
Mother Q also complained to the College. On November 7, 2023, the Inquiry Committee wrote to her with its conclusion that Dr. A had failed to meet the practice standard, Access to Medical Care Without Discrimination, which led to a formal reprimand.
Mother Q sought to put that letter before the Tribunal. Dr. A objected on four grounds: hearsay, improper expert evidence, s. 490 of the HPOA, and case-by-case privilege. On May 1, 2026, three days before the hearing, Vice Chair Cousineau rejected all four grounds.
The College had investigated the complaint under the old Health Professions Act, which the HPOA replaced on April 1, 2026. The parties agreed the HPOA governed Dr. A’s evidentiary objection (para. 17), and the Tribunal accepted that agreement without deciding the question.
Section 490: compellability, not admissibility
HPOA s. 490(1) says a person “must not give or be compelled to give evidence” about knowledge gained in exercising powers under the Act, and that records relating to those powers “are not compellable” in a court or in proceedings of a judicial nature. Dr. A argued the section bars collateral use of college documents.
The Tribunal examined the text of s. 490, which addresses when disclosure of records may be compelled (at para. 21), but says nothing about the admissibility of college documents in other proceedings. Child Q was not seeking to compel evidence; the College had addressed the letter to Mother Q, and the letter was “properly in her possession.”
Dr. A said the Legislature intended to keep college proceedings confidential and to preclude their collateral use. But the decision-maker (Vice Chair Cousineau) called that submission “not developed” (para. 22). Dr. A pointed to nothing in the HPOA’s scheme or purpose that would turn a compellability rule into an admissibility bar.
Dr. A also relied on RR v. Fraser Health Authority and others, 2024 BCHRT 193, where the Tribunal excluded College of Nurses and Midwives documents under s. 53 of the HPA. But two grounds distinguished RR (para. 23). First, RR had received the documents through counsel’s inadvertent disclosure and had no right to them. Second, s. 490 — unlike the old s. 53 — “does not make any category of documents confidential.” The HPOA’s confidentiality rule sits in s. 243, which binds persons who exercise powers or perform duties under the Act, but not Mother Q or Child Q.
Weeks earlier, in Boettger v. Anesthesia Pain Clinic and another (No. 2), 2026 BCHRT 103, the Tribunal reached the same result on s. 490. Vice Chair Cousineau noted Boettger but decided without relying on it, because the parties had not had the chance to address that decision (para. 20).
The privilege claim and the “Private and Confidential” marking
Dr. A asserted that the letter was “privileged” and therefore inadmissible. Dr. A invoked the four “Wigmore” criteria for case-by-case privilege. Dr. A stressed that the letter bore the words “Private and Confidential” and that confidentiality keeps complainants and registrants forthright during investigations.
Respecting standing to assert privilege (at para. 29), the College wrote the letter but asserted no privilege, and Mother Q received the letter and asserted no privilege. That left Dr. A claiming privilege over the College’s work product, addressed to a third party. Vice Chair Cousineau found it unclear how he could unilaterally assert privilege. Further, the letter’s own text cut against the argument. It asked Mother Q to keep the complaint confidential “unless necessary” — language that contemplates circumstances where disclosure is appropriate (para. 30). The letter set out review options. A more serious penalty would have appeared on the College’s public website. Since nothing in the HPOA makes every college record privileged, the Tribunal called the proposition of privilege “counterintuitive for a regulator tasked with protecting the public interest” (para. 31).
What the letter can prove, and what it cannot
Dr. A asserted the letter was “hearsay” and therefore inadmissible. The resolution of the hearsay objection turned on the use Child Q seeks to make (paras. 10 to 11). Child Q was not tendering the letter to prove the truth of the records, interviews, and statements it summarizes. She was tendering the letter to show the outcome of the college complaint and how the college viewed Dr. A’s conduct. Administrative decisions are routinely admitted by the Tribunal on that footing.
The letter did not bind anyone to the committee’s conclusions. Absent an estoppel argument, which Child Q did not make, the Committee’s “provisional assessment of the facts” did not bind the Tribunal (para. 11). The college asked whether Dr. A met professional standards. The distinct issue before the Tribunal was whether Dr. A discriminated under the Code.
The letter was, however, relevant to the Tribunal’s issues. Dr. A plans to call a medical ethicist to say his conduct was ethical and, presumably, consistent with his professional obligations. A finding from his own regulator for the same events “may be relevant to his justification defence” and has “some probative value” (para. 12). The weight of the evidence remained open for the hearing panel.
The Tribunal found no significant prejudice. Dr. A took part in the investigation with counsel and cannot dispute that the letter records the outcome of a complaint (para. 13). The expert evidence objection also failed: a regulator’s disposition is not an expert report, so Rule 21 notice did not apply (para. 16).
Implications
1. The HPOA does not block a complainant from using a decision: Section 490 protects committee members and staff from testifying, and college records from compulsion. Child Q leaves that protection intact. However, based don the Tribunal’s analysis, a request that a complainant keep a disposition “confidential” carries no force before another tribunal. Disposition letters may be filed in other proceedings, such as where a respondent’s defence is based on professional or ethical propriety. But no court (as distinct from the Tribunal) has ruled on whether HPOA s. 490 bars admission.
2. Reasons for decision vs. evidence: The analysis in Child Q turned on the complainant tendering a disposition letter addressed to her — the College’s own output resolving her complaint. A different question may arise where a regulatory participant acquires documents through a proceeding, such as an HPRB review, that attracts an “implied undertaking” to use those documents only for the purposes of that proceeding. The implied undertaking rule could limit the collateral use of documents obtained through compulsory or quasi-compulsory disclosure in a regulatory process, even where the disposition letter itself remains available.
3. Discrimination under HPOA regulatory complaints: In any event, concurrent human rights proceedings may be less common in the future, since a complainant filing a complaint under the HPOA (i.e., after April 1, 2026) may elect to assert discrimination as part of their regulatory complaint.
Child Q (by Mother Q) v. Dr. A, 2026 BCHRT 114
Lisa C. Fong KC and Michael Ng