RR v. Fraser Health Authority and others, 2024 BCHRT 193
Date Issued: June 21, 2024
File: CS-000544
Indexed as: RR v. Fraser Health Authority and others, 2024 BCHRT 193
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
RR
COMPLAINANT
AND:
Fraser Health Authority and IL and VG
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO EXCLUDE EVIDENCE
Based on s. 53 of the Health Professions Act
Tribunal Member: Shannon Beckett
On their own behalf: RR
Counsel for the Respondent: David J. Bell and Aleksandar Petrovic
I INTRODUCTION
[1] RR has filed a complaint with the Tribunal alleging that Fraser Health Authority [FHA], IL, and VG [together the Respondents] discriminated against her in the area of employment contrary to s. 13 of the Human Rights Code [Code]. The complaint is scheduled to be heard over 10 days, starting July 22, 2024.
[2] On May 23, 2024, the Respondents notified RR and the Tribunal that they had inadvertently disclosed documents to RR that they say are protected from disclosure by s. 53 of the Health Professions Act [HPA]. At the same time, they applied for an order that the Tribunal not consider, and the parties be prohibited from relying on, the inadvertently disclosed documents. I convened a case management conference on June 12, 2024, and heard oral submissions on the application.
[3] Resolution of this application involves consideration of s. 53 of the HPA, and whetherit prohibits disclosure of certain materials in the Tribunal proceedings.
[4] For the following reasons, I allow the application.
II BACKGROUND AND POSITIONS OF THE PARTIES
[5] Briefly, in 2016, RR started work in a new position as a Registered Nurse at a hospital operated by FHA. She alleges that after she started work in this position, her colleagues bullied and harassed her, at least in part, in relation to an alleged vision disability. One of RR’s specific allegations is that as part of their bullying and harassment, the Respondents filed a malicious complaint against her with the BC College of Nurses and Midwives [theCollege].
[6] The Respondents deny discriminating. With respect to RR’s allegation about the complaint to the College, the Respondents say that they were under a statutory duty to report RR’s conduct and their concerns with her nursing practice.
[7] The documents the Respondents say they inadvertently disclosed relate to the complaint to the College. The Respondents say that on November 10, 2017, IL submitted a “concern” to the College about RR’s nursing practice, which led to an investigation by the College under s. 33 of the HPA.
[8] The Respondents say that s. 53 of the HPA prohibits disclosure of documents which relate to College investigations. They say they accidentally disclosed materials to RR that relate to the College’s investigation of RR. The Respondents identify the following, as the documents they inadvertently disclosed:
a. Pages 117-126 of Document #3 of the Respondents’ disclosure entitled “HR File”, which consist of an email chain between the College and IL and VG about allegations they made against RR, as well as a letter from the College to IL requesting documents and other information.
b. The entirety of Document #33 of the Respondents disclosure described as “Emails between Fraser Health and BCCNP”, which consists of an email correspondence chain between RG (an employee of FHA), and the College, regarding RR’s response to a College investigation report.
[together, the Documents]
[9] RR says she wants to rely on approximately five pages of material from the Respondents’ disclosure package in relation to the College investigation. RR says that these pages are evidence of a connection between her vision disability and the Respondents’ conduct in making the complaint against her. She argues that the investigation is long over, and she should be able to use this material in the Tribunal proceeding.
III ANALYSIS
[10] The question before me is whether s. 53 of the HPA prohibits disclosure and use of the Documents in this proceeding.
[11] Section 53 of the HPAprotects the confidentiality of knowledge gained in the exercise of a power or the performance of duty under the HPA.Section 53 states:
Confidential information
53 (1) Subject to the Ombudsperson Act, a person must preserve confidentiality with respect to all matters or things that come to the person’s knowledge while exercising a power or performing a duty under this Act unless the disclosure is
(a) necessary to exercise the power or to perform the duty, or
(b) authorized as being in the public interest by the board of the college in relation to which the power or duty is exercised or performed.
(2) Insofar as the laws of British Columbia apply, a person must not give, or be compelled to give, evidence in a court or in proceedings of a judicial nature concerning knowledge gained in the exercise of a power or in the performance of a duty under Part 2.1 or Part 3 unless
(a) the proceedings are under this Act, or
(b) disclosure of the knowledge is authorized under subsection (1) (b) or under the bylaws or regulations made under this Act.
(3) The records relating to the exercise of a power or the performance of a duty under Part 2.1 or Part 3are not compellable in a court or in proceedings of a judicial nature insofar as the laws of British Columbia apply unless
(a) the proceedings are under this Act, or
(b) disclosure of the knowledge is authorized under subsection (1) (b) or under the bylaws or regulations made under this Act.
[12] The parties have not provided me with, and I am not aware of, any decisions of this Tribunal in which it considered the application of s. 53 of the HPA to proceedings under the Code.
[13] To my knowledge s. 53 has only been referred to in three prior Tribunal decisions. In all three, however, the Tribunal determined that it was unnecessary to decide whether s. 53 applied to resolve the matter before it.
[14] In Raudales v. Interior Health Authority (No. 2)[Raudales No. 2], 2018 BCHRT 239, the Tribunal considered whether the Respondent Health Authority’s use and disclosure of confidential materials from a College of Registered Psychiatric Nurses of British Columbia complaint investigation, warranted an award of costs for improper conduct. The complainant and the interveners on the application had argued that the Health Authority’s use and disclosure of the information violated s. 53 of the HPA, and that it also breached settlement privilege, common law privilege, and the respondent’s implied undertaking not to disclose the information. Ultimately, the Tribunal determined it did not need to consider the scope and application of s. 53 because it could determine the costs issue by applying the common-law doctrine of settlement privilege: at paras. 71-72.
[15] In a related subsequent dismissal application, the Tribunal held, again, that it did not need to consider the application of s. 53 of the HPA in order to resolve the issue before it: Raudales v. Felitsyn , 2019 BCHRT 74, at para. 37.
[16] In Byelkova v. BC Nurses’ Union, 2019 BCHRT 119, the respondent BCNU argued that the complainant improperly submitted and relied on evidence that she obtained though an investigation by the College of Registered Nurses, and in doing so improperly violated her obligation to keep the information confidential under s. 53 of the HPA. The Tribunal held it was not necessary for it to make a ruling on the admissibility of the evidence, because the complaint hinged on other evidence which was not confidential, and the Tribunal did not need to rely on or consider the potentially confidential information: at para. 45.
[17] The Respondents have provided me with two court decisions in which s. 53 (or its predecessor) has been considered.
[18] In Stelmaschuk v. The College of Dental Surgeons of British Columbia , 2018 BCSC 2421, the BC Supreme Court held that the purpose of s. 53 of the HPA is to “protect persons who allege misconduct and the process through which alleged misconduct is judged from civil litigation that is brought outside of the disciplinary process that is designed to ensure quality of care”(para. 13).
[19] Similarly, in Beale v. Nagra, 1998 CanLII 5078 (BCCA), Justice Southin for the majority of the BC Court of Appeal commented on the predecessor to s. 53 of the HPA (s. 61 of the Medical Practitioners Act). Justice Southin held that the purpose of the statutory protection was to insulate the College’s processes, and those engaged in it, from civil litigation. Justice Southin explained (at para. 23):
When the Legislature has addressed a question ─ promulgated what appears to be a code on the subject ─ the court should not be quick to find ways to undermine the legislative purpose. The plain purpose of s. 61 is to insulate, from the processes of civil litigation, the College and those engaged by it to assist in its processes concerning the quality of medical care in the Province. What the College does or does not do is not to be used in medical malpractice suits.
[at para. 23]
[20] My task is to interpret s. 53 to determine whether it prohibits disclosure and use of the Documents in this proceeding. In this task I am guided by the modern approach to statutory interpretation: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.
[21] I begin with the text of s. 53, which plainly sets out that not all information in relation to proceedings under the HPA are meant to be confidential. Rather, the focus of the section appears to be to ensure confidentiality of certain information related to “the exercise of a power or the performance of a duty” under the HPA.
[22] Section 53(1) imposes a duty to “preserve confidentiality” with respect to matters which come to a person’s knowledge “while exercising a power or performing a duty” under the HPA. Neither the Respondents nor RR provided submissions on the application of s. 53(1) to the present situation. As such, I make no findings in relation to confidentiality obligations under s. 53(1).
[23] Section 53(3) specifically relates to confidential documents, and their use outside of proceedings under the HPA. Section 53(3) specifies that records relating to the exercise of a power or the performance of a duty under either Part 2.1 or Part 3 of the HPA , are not compellable in “a court or in proceedings of a judicial nature” unless one of two exceptions applies.
[24] I accept the characterization of the overarching purpose of s. 53 as articulated in Stelmaschuk and Beale. The exercise of powers and performance of duties under the HPA, particularly in Parts 2.1 and 3, appear to be in furtherance of regulatory processes aimed at ensuring quality medical care in BC, and s. 53 demonstrates a legislative intention to keep such quality assurance processes confidential, subject to two limited exceptions.
[25] With that overarching purpose in mind, the first question concerning the use or compellability of the Documents in Tribunal proceedings is whether Tribunal proceedings are “proceedings of a judicial nature” within the meaning of s. 53(3). Neither the Respondents nor RR provided submissions on this question.
[26] I begin by observing that s. 53 refers to both “court” and“proceedings of a judicial nature”. This language suggests that the Legislature intended s. 53(3) to apply to more than just court proceedings, and to include proceedings, which are similar in nature to court proceedings. This interpretation is consistent with the interpretive principle that the legislature uses language carefully and consistently, so when the legislature uses different words within a statute, those words are to be interpreted as having different meanings:Ruth Sullivan,Sullivan on the Construction of Statutes,6th ed. (Markham: LexisNexis, 2014) at p. 217.
[27] In addition, the Human Rights Tribunal is an independent, quasi-judicial [1] administrative tribunal, which hears and decides complaints of discrimination under the Code. It functions in a similar way to a court, in that it generally employs an adversarial system of adjudication where parties present their cases in opposition to one another, and a neutral arbiter decides the final outcome. Further, it has the power to create its own rules and procedures, the power to compel witnesses and order disclosure, and the power to award a broad array of remedies.
[28] Based on the above, I find Tribunal proceedings are “proceedings of a judicial nature” within the meaning of s. 53(3).
[29] The next question is whether the Documents relate to the exercise of a power or the performance of a duty under Parts 2.1 or 3 of the HPA. The Respondents say that the Documents were created in the course of and in relation to an investigation authorized by the College pursuant to s. 33(4)(d) of Part 3 of the HPA. They say that the letter found at pages 124-126 of the Documents expressly states that the investigation was conducted pursuant to s. 33 of the HPA.
[30] The marginal note introducing Part 3 indicates this section of the HPArelates to inspections, inquiries, and discipline. Part 3 is comprised of 26 sections, and generally sets out a quality assurance, investigative and disciplinary framework applicable to colleges and registrants subject to the HPA. Section 33 falls within this Part, and sets out the powers of the inquiry committee to conduct investigations.
[31] Section 33(1) states that if the inquiry committee of a college receives a complaint from the registrar it “mustinvestigate the matter raised by the complaint as soon as possible” [emphasis added].
[32] Section 33(4) sets out that the inquiry committee, on its own motion, has the power to investigate a registrant in relation to a number of matters, including a registrant’s “competence to practice the designated health profession”: s. 33(4)(d).
[33] Section 33(6) sets out various powers of the inquiry committee of a college, including, after reviewing a registrant’s response to a complaint, the power to “take any action it considers appropriate to resolve the matter between the complainant and the registrant”. Similarly, s. 33(7) sets out the inquiry committee’s power to award costs against the registrant.
[34] In my view, s. 33 of the HPA sets out both duties and powers of the inquiry committee of a college in relation to investigating registrants.
[35] Although I have not reviewed the Documents, the parties do not appear to dispute that RR was investigated by the inquiry committee of the College under the HPA. Further, the Respondents say that the Documents expressly reference that the investigation was undertaken pursuant to s. 33. As such, it appears that the Documents all relate to the exercise of the inquiry committee’s powers and the performance of its duties under Part 3 of the HPA, and that unless an exception applies, the Documents are protected as confidential and not compellable in this Tribunal proceeding.
[36] The final question then, is whether either of the two exceptions set out in s. 53(3) apply. I find they do not. The first exception arises where the proceedings in which the materials are sought to be used are proceedings under the HPA. That is not the case here, where the proceedings are under the Code, and where the existence of the investigation and other College actions and/or materials are only tangentially related to the underlying claim of discrimination.
[37] The second exception arises where disclosure of the materials is “authorized under subsection (1)(b) or under the bylaws or regulations made under this Act”. Section 33(1)(b) allows an exception to confidentiality where disclosure is “authorized as being in the public interest by the board of the college in relation to which the power or duty is exercised”. Neither party has argued, and there is no evidence before me, that the board of the College has authorized disclosure of the Documents as being in the public interest. Further, I have not been pointed to, and am not otherwise aware of, any bylaw or regulation made under the HPA which authorizes disclosure of documents relating to this College’s investigations under s. 33.
[38] As neither exception applies to the Documents, I find they are not admissible in this proceeding.
IV CONCLUSION
[39] For the above reasons, I find that s. 53 of the HPA prohibits the disclosure and use of the Documents in this proceeding. As such, I order the Documents cannot be compelled, and are not admissible in this proceeding, including at the hearing of the complaint.
[40] For clarity, this decision applies only to the Documents. The assessment of whether other information, knowledge, or materials are captured by s. 53 of the HPAdepends on the context in which the information or knowledge was obtained, or the materials were created.
[41] The Respondents have made additional requests concerning how their original disclosure to RR should be handled. I decline to make any orders in relation to those requests because my finding that the Documents cannot be compelled in this proceeding does not extend to a finding about any confidentiality obligations attaching to the Documents under s. 53(1). As I have indicated above, the Respondents did not provide submissions on that issue, and I have not considered it in this decision.
Shannon Beckett
Tribunal Member
[1] See for example: Smith v British Columbia (Human Rights Tribunal), 2021 BCSC 331, at para. 13; Independent School Authority v Parent, 2022 BCSC 570, at para. 32; Downtown Vancouver Business Improvement Association v. Pivot Legal Society, 2010 BCSC 807, at para 40.