Administrative law – Accountants – Disciplinary proceedings – Investigative bodies – Powers – Jurisdiction – Qualified privilege
Hung v. Gardiner,  B.C.J. No. 1918, British Columbia Supreme Court, August 21, 2002, Joyce J.
Following an investigation of the Plaintiff’s supervising chartered accountant, the Professional Conduct Enquiry Committee (“PCEC”) of the Institute of Chartered Accountants of British Columbia (“Institute”) determined that the supervising accountant had been guilty of professional misconduct in his supervision of the Plaintiff, a lawyer and an accountant.
The PCEC sent the Law Society and the CGA Association an edited copy of the PCEC’s report. The CGA Association determined it would not take disciplinary actions against the Plaintiff and the Law Society declined jurisdiction to investigate her actions.
The Plaintiff advanced claims for damages for defamation, malicious prosecution, negligence, breach of confidentiality under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, breach of the Accountants (Chartered) Act, R.S.B.C. 1996, c. 3, and bylaws, misfeasance in public office, breach of the Privacy Act, R.S.B.C. 1996, c. 373, invasion of privacy and conspiracy.
The Trial Court dismissed all claims against the Defendants.
The acts of the Defendants were protected by absolute and/or qualified privilege because the act of sending the edited report to the professional bodies was the first step in quasi-judicial proceedings. Additionally, the Defendants were protected by section 25 of the Accountants (Chartered) Act, in that their actions were performed in good faith and in furtherance of the purposes of the Institute. The Disciplinary Authority Protection Act, R.S.B.C. 1996, c. 98, did not apply, as their actions were not undertaken “in the exercise of the disciplinary powers conferred” by the Act.
The Plaintiff failed to plead that the Institute owed her a duty of care. In any event, the Plaintiff did not establish that the Defendants breached any duty owed to her.
The claim for public misfeasance against the Defendants did not stand, as the Institute honestly and reasonably believed it had a duty to report the Plaintiff to the professional bodies. The malintent that is necessary to found an action based on misfeasance was absent.
There is no common law tort of invasion of privacy in British Columbia.
The acts of the Defendants were authorised by section 22(1) of the Freedom of Information and Protection of Privacy Act. As the Defendants acted in good faith, section 73(a) of that Act also afforded protection to the Defendants.
The Trial Court determined that the Defendants could not be held liable for any time, trouble, inconvenience or loss that the Plaintiff may have suffered as a result of the disclosure to the professional bodies of the report. Such consequences are merely the costs of being a professional person.
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