January 16, 2019

Settlement privilege applies to reviews before the HPRB

Administrative Law
Inquiry and Investigations
Professional Regulation

When inquiry committees negotiate consent or undertaking agreements to resolve complaint matters consensually (under Health Professions Act ss. 33(6)(c) and 36(1)), they may exchange “without prejudice” letters with registrants to discuss terms. In 2009, the Review Board seemingly eliminated “settlement privilege” as a basis for withholding settlement documents from complainants, presuming that such documents were to form parts of records (2009-HPA-0027(a)). The Review Board has, however, now recognized that settlement privilege may exempt settlement communications from records: Complainant v. College of Physicians and Surgeons of British Columbia, 2016-HPA-199(b).

The question of settlement privilege arose where a registrant’s counsel sent several “without prejudice” letters to the inquiry committee proposing a resolution to a complaint matter. The communications led to a consent agreement. The issue then arose if the settlement letters should be exempt from the record, based on settlement privilege. As stated by the Supreme Court of Canada, “Settlement negotiations have long been protected by the common law rule that ‘without prejudice’ communications made in the course of such negotiations are inadmissible….”: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37.

The Review Board recognized that notwithstanding general principles of transparency, openness and disclosure, the HPA applies specific provisions of the Administrative Tribunals Act to the Review Board, including ATA s. 40(3): “Nothing is admissible before the tribunal that is inadmissible in a court because of a privilege under the law of evidence.” While the Review Board’s rules only expressly recognize solicitor-client privilege, ATA s. 40(3) is given force by the HPA itself, and therefore overrides the Review Board’s rules.

The Review Board held the settlement letters inadmissible and ordered them severed from the record. [74] It recommended that colleges provide a list of privileged documents, with an explanation or rationale for the claim of privilege. [72] Ng Ariss Fong acted for the College of Physicians and Surgeons.

Complainant v. College of Physicians and Surgeons of British Columbia, 2016-HPA-199(b) (Feb. 13, 2018)

Lisa C. Fong and Michael Ng