Professional regulatory statutes often contain confidentiality provisions that make records or other documents used by regulators during investigation and disciplinary processes, e.g., documents relating to complainants or other patients, non-compellable during civil proceedings. For example, section 53 of BC’s Health Professions Act not only imposes a duty on persons to “preserve confidentiality”, but also provides that records are “not compellable in an court or in proceedings of a judicial nature” except for proceedings under the Act, or where disclosure is authorized by a college board as “being in the public interest” (s. 53(1) and (3)). Similarly, section 87(5) of BC’s Legal Profession Act provides, for example, that a person exercising powers under that Act may not be compelled to disclose “information… acquired during the course of an investigation, an audit, an inquiry, a hearing or a review,” (s. 87(5)(a)) and indeed such persons are “not competent to testify” (s.87(5)(b)).
Regulators, complainants and registrants alike should remember that such provisions can amount to a form of statutory privilege prohibiting the use of confidential documents in court proceedings. The rationale for such prohibitions was noted by the Ontario Court of Appeal in M.F. v. Sutherland (2000), 188 D.L.R. (4th) 296 (Ont.C.A.), where a complainant sued a physician for sexually assaulting her, and also filed a complaint with the College of Physicians and Surgeons of Ontario.
Upon the complainant and the physician settling the civil matter, the complainant signed a sworn statement recanting her allegations, and she thereby withdrew her complaint. However, when the physician stopped payments under the settlement, the complainant sued him, and the physician raised her recantation in his defence. But the courts struck out his mention of her recantation in his defence, on the basis the complainant’s statement was inadmissible in the court action, due to section 36(3) of Regulated Health Professions Act stipulating that no document prepared for a proceeding under the Act was admissible in a civil proceeding. The Ontario Court of Appeal concluded the recantation was prepared for use in a discipline proceeding , and explained the policy underlying the restriction, i.e., encouraging reporting, and eliminating the fear of any participant that a document could be used in a civil action:
“ … The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3). The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.” (emphasis added)
The court decided that section 36(3) did not provide any “exception” for documents said to be fraudulent. Rather, the prohibition was absolute:
“ Ensuring that documents prepared for College proceedings are always inadmissible in civil proceedings is especially important in cases, like this one, of alleged sexual abuse. Indeed, a fraud or bad faith exception to the application of s. 36(3) would be inconsistent with s. 1.1 of the Health Professions Procedural Code. Section 1.1 of the Code provides that “[t]he purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse …” Without the absolute protection given by s. 36(3) patients might be discouraged from, not encouraged to, report complaints of sexual abuse.” (emphasis added)
The BC Supreme Court attributed a similar policy to section 87 of the Legal Profession Act in Intergulf Investment Corp. v. Gregory, 2010 BCSC 607:
“The legislative policy behind provisions such as LPA s. 87 favours openness and candour in the professional regulatory context, over the unfettered use of evidence in civil proceedings. The legislation promotes the full disclosure necessary to the proper investigation and resolution of complaints, by protecting the parties involved in the complaints process (including the executive director of the LSBC) against the prospect that what is communicated during the process will be used against them in other proceedings without their consent.” (emphasis added)
The extent of such protection will, however, depend on the wording of each specific statute. For example, the Ontario Court of Appeal found that a provision which rendered inadmissible in civil proceedings any record or documents relating to proceedings “under this Act” (meaning the Chartered Accountants Act, 2010) did not apply to documents relating to proceedings under its predecessor, the Chartered Accountants Act, 1956: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2014 ONCA 89.
Lisa C. Fong and Michael Ng