A member of the Law Society of British Columbia and the Certified Accountants Association of British Columbia (the “Appellant”), brought an action for damages for defamation, malicious prosecution, negligence, misfeasance in public office etc. against the members of the Professional Conduct Inquiry Committee and the Director of Ethics of the Institute of Chartered Accountants (the “Respondents”) after they forwarded an investigator’s report to the Law Society and Certified General Accountants Association. The B.C. Court of Appeal held that a person who provides information to a professional disciplinary body about the conduct of one of its members, is not liable in an action brought by that member. The communication is subject to absolute privilege, which provides a defence to all claims. In addition, while the filing of a jury notice is an important factor to consider in assessing whether a matter is appropriate for summary trial, and may “hold an extra value in cases of defamation”, it is not a bar to bringing an application for summary trial pursuant to Rule 18A. The trial judge exercised his discretion in determining that the matter was appropriate for disposition by summary trial and made no error in principle in deciding the case under Rule 18A.

Administrative law – Accountants – Disciplinary proceedings – Investigative bodies – Powers – Jurisdiction – Absolute privilege – Practice and procedure – Jury notice – Summary proceedings

Hung v. Gardiner, [2003] B.C.J. No. 1048, British Columbia Court of Appeal, May 6, 2003, Ryan, Hall and Levine JJ.A.

The Appellant is a member of the Law Society of British Columbia and the Certified General Accountants Association of British Columbia (the “CGA Association”). Actions taken by her while she was employed by a chartered accountants firm resulted in an investigation and reprimand of her supervisor by the Professional Conduct Enquiry Committee (the “PCEC”) of the Institute of Chartered Accountants of British Columbia (the “ICABC”). The members of the PCEC decided that the Law Society and the CGA Association should be informed of the Appellant’s conduct and the Director of Ethics for the ICABC (the “Respondents”) forwarded its investigator’s report to these professional bodies. Both the Law Society and CGA Association declined to investigate further or take any discipline action against the Appellant.

The Appellant brought an action 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 Accountant (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.

Her claims were dismissed following summary trial under Rule 18A as being barred by the absolute privilege that surrounded the act of providing the report to the professional bodies. In a preliminary objection to the Rule 18A proceeding, the Appellant also argued that a summary trial would be unjust because, among other reasons, it would deprive her of a jury trial. The trial judge ruled that this was a factor to consider, but provided there was sufficient evidence to find the necessary facts, it would not be unjust to decide the matter under Rule 18A.

The trial judge’s decision was upheld on appeal. As per the principles enunciated in Sussman v. Eales (1985), 33 C.C.L.T. 156 at 157 (Ontario H.C.J.), appeal allowed in part (1986), 25 C.P.C. (2d) 7 (Ont. C.A.), “no action will lie for defamatory statements contained in a document properly used in the course of any proceedings before a court of justice or tribunal recognized by law”. The rational for the immunity was further explained as “… a question of balancing two interests”. The public interest should outweigh that of the individual for at least two reasons. First, the immunity will only be conferred upon a citizen complaining in a confidential way to a body created by statute. A communication of that kind is hardly a publication harming one’s reputation in the community to a degree sufficient to attract an award of compensation. Second, the right to engage in professional activities must be the subject of rules governing them. These rules cannot be enforced without a corresponding right in the members of the public to complain uninhibited and without fear of being found wrong and as a result being subject to actions in defamation. Surely it is a small price for a professional person to pay”.

The Respondents enjoyed absolute privilege even where neither the Law Society nor the CGA Association commenced disciplinary proceedings against the Appellant. It does not matter whether the professional body declines to commence proceedings against the professional person after receiving the complaint. The key determination to the defence of absolute privilege is whether the body complained to exercises quasi-judicial powers over the individual complained against. There is no question that the Law Society and the CGA Association, exercising their disciplinary powers, have attributes similar to a court of justice or act in a manner similar to that in which courts act. Both professional bodies have the power to determine the legal rights and to affect the status of their members. Thus, a complaint made to them in a confidential way concerning a member’s conduct is absolutely privileged. All of the Respondents are entitled to claim absolute privilege and are immune from liability for their actions in sending the information to the Law Society and the CGA Association concerning the Appellant’s professional conduct.

Finally, the filing of a jury notice in a defamation case is not a bar to a summary trial under Rule 18A. While the filing of a jury notice is an important factor to consider in assessing whether a matter is appropriate for summary trial, and as suggested in McLean v. Southam Inc., [2002] B.C.J. No. 700 (Saunders J.A. in chambers) may “hold an extra value in cases of defamation”, it is not determinative of the issue. The trial judge exercised his discretion judicially and made no error in principle in deciding this case under Rule 18A, despite the fact the Appellant had filed a jury notice.

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