Documents, specifically expert reports, created in the course of an investigation of a complaint of professional misconduct by the College of Physicians and Surgeons (the “College”) were exempt from disclosure under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c.165 (the “Act”), because they were “advice or recommendations developed … for a public body”, and exempt pursuant to section 13 of the Act. The documents were not exempt from disclosure on the grounds they were subject to solicitor-client privilege.

25. February 2003 0

Administrative law – Freedom of information and protection of privacy – Disclosure – Public body – Definition – Solicitor-client privilege – Boards and tribunals – Expert reports – Legal advice privilege – Litigation privilege – Physicians and surgeons – Disciplinary proceedings – Delay

College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), [2002] B.C.J. No. 2779, British Columbia Court of Appeal, December 12, 2002, Hall, Low and Levine JJ.A.

A complainant alleged misconduct by her physician employer, claiming he had hypnotized her. The lawyer for the College obtained the opinion of four experts, two in writing and two orally, to assist the College in assessing the basis for the complaint. The lawyer prepared memoranda summarizing the oral opinions. The College decided not to proceed with an inquiry to determine whether any disciplinary action should be taken against the physician. The College’s lawyer wrote to the complainant, summarizing the opinions of the four experts, and explaining that the evidence did not support any action against the physician. The complainant sought disclosure of the expert opinions (both the written opinions and the lawyer’s memoranda summarizing the oral opinions) through provisions of the Act. The College refused to disclose the documents and on review by the Information and Privacy Commissioner (the “Commissioner”), argued that the opinions were exempt from disclosure under section 14 of the Act, as they were subject to solicitor client privilege, and under section 13 of the Act, as advice or recommendations developed for a public body. The Commission held that the opinions were not subject to solicitor-client privilege and not protected from disclosure by section 13 of the Act. The chambers judge upheld the Commissioner’s decision on these grounds.

The appeal was allowed. At the outset, it was found that the chambers judge erred in finding that the College had waived privilege on the grounds of unfairness.

Solicitor-client privilege at common law and for the purposes of section 14 of the Act includes the privilege that attaches to confidential communications between solicitor and client for the purpose of obtaining and giving legal advice (“legal advice privilege”) and the privilege that attaches to documents gathered and prepared for a solicitor for the dominant purpose of litigation (“litigation privilege”).

Legal advice privilege arises only where a solicitor is acting as a lawyer, that is, when giving advice to a client. Where a lawyer acts as an investigator, there is no privilege protecting communications to and from her. The Commissioner and chambers judge erred in finding that the College’s lawyer was not acting in her capacity as a lawyer when she investigated the complaint. She was acting on her own client’s instructions to obtain the facts necessary to render legal advice to the College concerning its legal obligations arising out of the complaint. Lawyers must often undertake investigative work in order to give accurate legal advice. As such, she was engaged in giving legal advice to her client. However, legal advice privilege did not exist to protect a relationship of confidentiality between the College and the experts. Third party communications are protected by legal advice privilege only where the third party is performing a function, on the client’s behalf, which is integral to the relationship between the solicitor and the client. In this case, while the experts’ opinions were relevant and even essential to the legal problem confronting the College, the experts never stood in the place of the College for the purpose of obtaining legal advice. Therefore the written reports and the lawyer’s summaries, with the exception of a portion which contained the lawyer’s comments, were not subject to legal advice privilege.

“Litigation privilege” did not apply to the documents as litigation was not “a reasonable prospect” when they were created and the dominant purpose for their creation was not litigation. The College was not engaged in an adversarial process when it investigated the complaint. During an investigation of a complaint, the College is neither its own advocate or anyone else’s. It is involved as neutral body in discovering and analysing the facts and circumstances of the complaint and determining, within its statutory mandate, how to proceed.

The documents did not fall under the category of legal advice privilege or litigation privilege (with the exemption of the portion containing the lawyer’s comments) and therefore there was no principled basis for exempting the expert reports from disclosure under section 14 of the Act.

The College was however entitled to refuse to disclose the materials pursuant to section 13 of the Act, as advice or recommendations developed for a public body. The chambers judge and Commissioner erred in their interpretation of the word “advice”, by requiring that the information must include a communication about future action and not just an opinion about an existing set of circumstances. Section 13 recognizes that some degree of deliberative secrecy fosters the decision-making process, by keeping investigations and deliberations focussed on the substantive issues, free of disruption from extensive and routine inquiries. The confidentiality claimed by the College has a similar objective: to allow it to thoroughly investigate a complaint with the open and frank assistance of those experts who have the knowledge and expertise to help in assessing a complaint and deciding how to proceed. Section 13 should be interpreted to include an opinion that involves exercising judgment and skill to weigh the significance of matters of fact. “Advice” includes expert opinion on matters of fact on which a public body must make a decision for future action.

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