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the case
In Association of Professional Engineers and Geoscientists of the Province of British Columbia v Engineer X, 2023 BCCA 221, a young man fell from an exterior fire escape, resulting in catastrophic injuries. He commenced a civil action against an engineering company, alleging that his fall was due to the state of disrepair of the fire escape. That action was settled prior to trial. Two days after the matter was settled, an engineer who had provided his expert opinion in preparation for the litigation (the “Complainant”) sent a letter to the Association of Professional Engineers and Geoscientists of the Province of British Columbia (“APEGBC”), raising concerns about the professional conduct of the engineers involved. The Complaint enclosed documents that the Complainant had received in his role as an expert in the matter. APEGBC brought an application seeking leave to make use of the materials for the purposes of investigating and potentially instituting disciplinary proceedings.
The Court noted that an examinee’s privacy interest is entitled to a measure of protection. A litigant who has some assurance that the information provided in the pre-trial examination process will not be used for a collateral purpose will be encouraged to provide a more complete and candid discovery. However, these principles are not absolute and the implied undertaking rule may be trumped by a more compelling public interest.
The Court determined that APEGBC should not be granted leave to use the information subject to the implied undertaking. In reaching that conclusion, the Court considered that allowing professional regulatory bodies to use these materials would expose the engineers to investigatory and disciplinary proceedings that would otherwise not take place.
Further, the Court affirmed that the regulator did not demonstrate why the issue was important to investigate, based on the nature of the complaint in the context of the professions regulated. The bare complaint and statutory mandate were not sufficient to override the implied undertaking rule.
The Court rejected APEGBC’s argument that it would not be able to carry out its statutory mandate to investigate the complaint. APEGBC should never have been in possession of the documents it now wished to use, which weakened this argument.
Finally, the Court noted that there would undoubtedly be cases in which the public interest in having a complaint investigated will outweigh the public interest in protecting the implied undertaking, but that will not always be so.
our two cents for free
Should a regulator obtain information disclosed in the pre-trial discovery process, permission should be promptly sought from the Court to utilize that information prior to taking further investigative steps. Should a regulator appear before the Court on an application for permission to use that information, evidence or argument should be provided which expressly identifies why the complaint is important to investigate and why the public interest in continued investigation justifies overriding the public interest in the implied undertaking rule.
question
Are you investigating any complaints where information subject to the implied undertaking rule has been disclosed?
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
- A Case: a (very) brief summary of a recent and relevant case;
- Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
- A Question: something to get you thinking about ways to enhance your work.
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