BC Court of Appeal upholds Supreme Court decision to protect implied undertaking to the court

BC Court of Appeal upholds Supreme Court decision to protect implied undertaking to the court, prohibiting pre-trial discovery evidence from being used by a professional regulator to investigate a professional regulatory complaint.

Administrative law – Decisions reviewed – Investigations – Judicial review – Appeals – Confidentiality – Discretion – Engineers – Professional misconduct

Association of Professional Engineers and Geoscientists of the Province of British Columbia v. Engineer X, [2023] B.C.J. No. 967, 2023 BCCA 211, British Columbia Court of Appeal, May 23, 2023, L.A. Fenlon, G.J. Fitch and B. Fischer JJ.A.

The Appellant, the Association of Professional Engineers and Geoscientists of the Province of British Columbia (“EGBC”), sought to appeal a decision from the BC Supreme Court which refused it leave to use information (the “Contested Materials”) subject to an undertaking to the court which prohibits the use of pre-trial discovery evidence other than in the proceeding in which it is disclosed (the “Implied Undertaking”).

Following acting as an expert for a plaintiff in a civil lawsuit wherein the plaintiff alleged he was catastrophically injured after falling from a decrepit fire escape (the “Civil Lawsuit”), an engineer (the “Complainant”) filed a complaint with the EGBC regarding the professional conduct of the engineers that had some professional involvement with the fire escape prior to the plaintiff’s fall. The Complainant relied on the Contested Materials obtained through acting as an expert in the Civil Lawsuit for his complaint.

One of the complaints about engineers objected to the Complainant’s improper disclosure of the Contested Materials in breach of the Implied Undertaking, and the EGBC sought leave of the court to rely on the information for its complaint investigation.

Following Juman v. Doucette (2008 SCC 8), the leading case on the waiver of an implied undertaking, the BC Supreme Court weighed whether the public interest in having the complaint investigated by the EGBC in the circumstances of this case had greater weight than the public interest in upholding the values the implied undertaking was designed to protect, and determined that the public interest weighed in favour of protecting the Implied Undertaking.

The BC Court of Appeal upheld the Supreme Court decision, noting that the lower court was not required to address a prescriptive list of factors. Having identified the relevant test and considerations, it was open to the court to focus on those that were significant in the context of the application.

The Court of Appeal reiterated the values underlying the Implied Undertaking: (1) respect for the examinee’s privacy interest and (2) the public interest in the efficient conduct of civil litigation. The Court of Appeal recognized that these values may be trumped by a more compelling interest. In this case, the question was whether the public interest in having a complaint investigated by the EGBC in the circumstances of this case had greater weight than the public interest in upholding the values the Implied Undertaking was designed to protect.

Because none of the complained about engineers were parties to the Civil Lawsuit, the Court of Appeal found the lower court appropriately considered a minimal role for privacy in the balancing of interests, while acknowledging the prejudice to them by the use of the Contested Materials which exposed the engineers to complaint proceedings.

While the EGBC was not required to address the substantive merit of the complaint, the Court of Appeal agreed with the lower court that it failed to demonstrate the strength of the public interest in having the complaint investigated by putting forward information that could have justified why the issue was important to investigate. The bare complaint and the EGBC’s statutory mandate did not give rise to a public interest in investigation that outweighed the public interest in maintaining the integrity of the Implied Undertaking.

The fact that the EGBC found itself with a complaint alleging contraventions of the professional standards only as a result of the Complainant’s breach of the Implied Undertaking weakened the strength of the EGBC’s submission that it must now act on what it now knows, as to allow them to rely on this information would implicitly condone the breach of the Implied Undertaking.

This case was digested by Renee Gagnon, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Renee Gagnon at rgagnon@harpergrey.com.

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