B.C. Court of Appeal upholds the values of the implied undertaking when weighed against professional regulator’s request to use information obtained in pre-trial discovery in other proceeding.
In Association of Professional Engineers and Geoscientists of the Province of British Columbia v. Engineer X, 2023 BCCA 211, the B.C. Court of Appeal weighed in on whether information obtained in the course of pre-trial discovery can be used to investigate a complaint against a member of a regulated profession.
There is an implied undertaking of confidentiality on parties and their counsel to refrain from using or disclosing, without permission from the court, documents or evidence obtained during pre-trial discovery. An objective of the implied undertaking rule is that a litigant may be assured that the documents and answers they provide will not be used for a collateral purpose, thereby resulting in a more complete and candid discovery.
At issue in this case was a complaint received by the Engineers and Geoscientists of British Columbia (EGBC) about three of its members. The Court of Appeal upheld the lower court’s decision that the public interest in upholding the values that the implied undertaking is designed to protect, had greater weight than the public interest in having the complaint investigated by the EGBC.
In February 2016, a young man fell from an exterior fire escape, resulting in severe injuries, including quadriplegia. The man commenced an action in December 2016, alleging that the fall was due to the state of disrepair of the fire escape.
The plaintiff retained an expert engineer who received a number of documents relating to inspections of the fire escape performed by three engineers, including one who was a defendant in the action. After the action settled, the expert made a complaint to the EGBC about the professional conduct of the three engineers and he enclosed documents he had received in his role as an expert in the litigation. The engineers objected to the expert’s disclosure of the discovery evidence as a breach of the implied undertaking to the court not to use the information for a collateral purpose. The EGBC then filed a petition seeking leave to make use of the materials for the purpose of investigating and potentially instituting disciplinary proceedings against the engineers.
The Court of Appeal considered the appellant’s four grounds of appeal and rejected each one.
First, the Court disagreed with the EGBC’s argument that the chambers judge focused primarily on the public interest of implied undertakings generally, as opposed to the individual privacy interests of the engineers. The Court found that the judge properly considered the individual privacy interests of the engineers, but that this factor did not weigh towards allowing the documents to be used by the EGBC.
Second, the Court rejected the EGBC’s argument that the chambers judge erred in requiring the EGBC to adduce evidence of the seriousness of the complaint. The judge had noted the EGBC could have done more to demonstrate the seriousness of the complaint rather than just relying on the fact of the complaint and its statutory mandate. The Court held that the judge’s analysis was appropriate. She did not say that additional evidence will always be necessary on an application of this kind, but found that the bare complaint and statutory mandate did not give rise to a public interest that outweighed the public interest in maintaining the integrity of the discovery process through the implied undertaking.
The third ground of appeal by the EGBC was that the chambers judge erred in her assessment of the impact her decision would have on granting leave on future applications. The judge concluded that allowing the EGBC to use the materials would have detrimental effects on the efficacy of the implied undertaking rule. First, it would encourage professionals to breach the undertaking, and second, it would set the bar very low for overriding an undertaking. The Court agreed that professionals who are sued or otherwise subject to discovery would not be encouraged to provide full and frank disclosure if they knew that their privacy would not be protected, and that any information provided in a civil proceeding could be used by their regulator.
Finally, the Court disagreed with the EGBC’s submission that the judge erred in concluding that denying the EGBC use of the contested material would not interfere with its statutory mandate to protect the public interest. The Court noted that in this case, the EGBC should never have been in possession of the documents it was now in possession of, and only had these documents as a result of a breach of the implied undertaking.
Ultimately, the Court of Appeal agreed with the court below, and held that the importance of investigating a professional regulatory complaint must be weighed against the competing interest in upholding the implied undertaking to the court in pre-trial discovery.
The Court of Appeal decision has important implications for professionals and professional regulators. While the Court was clear that its decision does not stand for the proposition that information obtained subject to the implied undertaking to the court can never be used in professional regulation, it demonstrates the importance of honouring the expectation of privacy afforded to professionals compelled to give evidence during pre-trial discovery.
Regulators have a duty to ensure they are protecting the public from misconduct; however, that mandate must be balanced against the rationale underlying the implied undertaking rule. This case demonstrates that the approach to these issues is one of balancing and it will be difficult for the scales to tip towards overriding the implied undertaking.
Please contact a member of our Construction + Engineering Group if you have any questions regarding the above.