Monthly Question: What are the practical implications when a registrant sends “without prejudice” correspondence to the College during the inquiry/investigation stage?
The words “without prejudice” have meaning in the context of the legal principle that discussions toward settling litigation should not be used in the litigation against the discussion’s participants. This principle promotes settlements. To carry out this principle, courts will refuse to receive evidence of such discussions (except in limited circumstances), even if the discussions include relevant evidence, such as an admission by a party. This refusal to receive evidence is an exception to the general rule that a court will hear relevant evidence, and may be referred to as “settlement privilege” or “settlement negotiation privilege.” The words “without prejudice” on a communication are intended to signal that the communication is part of an attempt at settling the matter, and therefore cannot be used at a hearing if negotiations should fail.
The words “without prejudice” in a letter will result in the letter being privileged if, and to the extent that the letter actually forms part of a settlement discussion. If the letter does concern settlement (e.g., of a disciplinary matter), the intended privilege will clearly extend to any disciplinary proceeding for which a citation is issued. Under the Health Professions Act, however, the Inquiry Committee also performs a statutory decision-making role, e.g., by deciding if its College will dismiss a complaint, or setting terms to resolve a matter through agreement. An author may therefore intend that a communication, e.g., with a staff member of a College, form part of a discussion which may facilitate a complaint being resolved, but not be disclosed to the Inquiry Committee for purposes of s. 33(6) decision-making.
Correspondence marked “without prejudice” that clarifies when privilege is to apply, e.g., “without prejudice to a disciplinary proceeding” or “without prejudice to a disciplinary hearing except as to costs,” is implicitly with prejudice to the inquiry process, and will not often present a problem.
Similarly, where a College’s inquiry process does not provide for any sort of “without prejudice” meeting to facilitate resolutions by undertaking and consent, an unqualified “without prejudice” statement will likely refer only to any disciplinary hearing in the matter. Indeed, some Colleges insist that all settlement correspondence be “with prejudice” with respect to the inquiry process, to advance the transparency of the inquiry process (especially now that the Health Profession Review Board has taken the position that such correspondence is evidence of the integrity of the process and therefore subject to disclosure as part of the review process).
Some Colleges may, however, permit settlement correspondence or discussions to be without prejudice to Inquiry Committee decision making, e.g., during “without prejudice” meetings. Such Colleges may develop a system of sub-committees to deal with settlement so as to leave the balance of the Inquiry Committee able to make a decision if settlement is not achieved through “without prejudice” discussions.
Where a registrant provides correspondence marked “without prejudice” that he or she might have intended for any reason that it not be disclosed to the Inquiry Committee, the registrant should be asked if he or she intended that the information be considered by the Inquiry Committee as part of its investigation.
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