March 14, 2016

Disclosure by public bodies of risks to public health or safety (under BC’s FIPPA)

Inquiry and Investigations
Professional Regulation

Professional regulatory bodies in British Columbia must preserve personal privacy, and treat matters as confidential, as and to the extent they must under their enabling statutes, and under BC’s Freedom of Information and Protection of Privacy Act (“FIPPA”). But all public bodies also have an overriding duty under FIPPA to disclose “without delay” any information about a “risk of significant harm” to health or safety, or where disclosure is otherwise “clearly in the public interest”. The B.C. Supreme Court addressed this duty in Bryson v. APEGBC, 2015 BCSC 2453 (“Bryson”).

While investigating a member, APEGBC received an engineering report about a 40-storey building for which the member had been the structural engineer. The report concluded that the core walls had deficiencies and did not comply with the Building Code. APEGBC intended to disclose the report to the City of Surrey under s. 25 of FIPPA, which requires that the head of a public body disclose to the public “without delay” information “about a risk of significant harm” the health or safety of the public, or where disclosure is otherwise “clearly in the public interest”.

While APEGBC told the member of the intended disclosure, the member applied to have the court prevent disclosure to the City for another 30 days, or more, so that he could respond, and also provide a responding expert report. The court disagreed, noting that s. 25 required that the head of the public body disclose “without delay,” and noting also that APEGBC had offered to include any position or letter the member wanted to include in the disclosure, such that the member could tell the City he was obtaining another report. The court found the disclosure process fair to the member. Furthermore, in terms of the “balance of convenience,” the paramount concern for public safety outweighed the member’s concern for personal embarrassment or effects on his reputation.

Bryson v. Association of Professional Engineers and Geoscientists of British Columbia, 2015 BCSC 2453

Lisa C. Fong and Michael Ng