Boettger v. Salem Anesthesia Pain Clinic and another (No. 2), 2026 BCHRT 103
Date Issued: April 17, 2026
File: CS-006435
Indexed as: Boettger v. Salem Anesthesia Pain Clinic and another (No. 2), 2026 BCHRT 103
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:
Tracee-Ann Boettger
COMPLAINANT
AND:
Salem Anaesthesia Pain Clinic and Olumuyiwa Akinwumi Bamgbade
RESPONDENTS
REASONS FOR DECISION
EVIDENTIARY OBJECTIONS
Section 27.2
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Laura Track
Counsel for the Respondents: Rachel Wood and William Clark
I INTRODUCTION
[1] Tracee-Ann Boettger alleges that Dr. Olumuyiwa Akinwumi Bamgbade sexually assaulted her while they were alone during a clinical visit on August 31, 2020. Dr. Bamgbade denies this and says the allegation is false. This hearing is scheduled to begin on April 20, 2026.
[2] This decision is about three preliminary evidentiary objections.
[3] The Respondents object to the admissibility of two documents that Ms. Boettger seeks to rely on, arising from her complaint to the College of Physicians and Surgeons [College]:
a. Her written complaint to the College, dated September 3, 2020, and
b. The College’s September 25, 2020 memorandum of a telephone interview with Ron Nichols, who drove Ms. Boettger to and from her appointment with Dr. Bamgbade on the date of the alleged assault. Mr. Nichols has since passed away.
[4] The Respondents object to the admissibility of these documents, on the bases that they are prior consistent statements and violate the rule against oath helping, are inadmissible under the Health Professions Occupations Act, and/or are unreliable hearsay. The parties made written submissions to facilitate the resolution of the objections before the hearing.
[5] Ms. Boettger objects to the proposed evidence of Daniel Bamgbade, Dr. Bamgbade’s son. She says his proposed evidence is irrelevant and prejudicial, and asks that he be struck from the Respondents’ witness list.
[6] For the reasons that follow, I find that the College documents are inadmissible based on the arguments the parties have presented so far. At the hearing, my assessment could change depending on a fuller context of the evidence and the use that Ms. Boettger seeks to make of the documents. I defer my final decision about Daniel Bamgbade’s evidence to the hearing, subject to my preliminary assessment of the parties’ arguments so far.
II GENERAL PRINCIPLES
[7] The Tribunal has authority to admit any evidence it considers “necessary and appropriate”, “whether or not the evidence or information would be admissible in a court of law”: Human Rights Code, s. 27.2. There are two exceptions: evidence that is inadmissible because of privilege, and evidence that is inadmissible under other legislation: s. 27.2(2) and (3).
[8] This broad authority allows the Tribunal to adjudicate complaints efficiently and fairly, in a context where many participants are not legally trained. Among other things, it ensures that hearings do not get unnecessarily bogged down in evidentiary objections, and that self-represented parties can participate effectively.
[9] This does not mean that rules of evidence developed in civil or criminal contexts have no application to Tribunal proceedings. The Tribunal must base its decisions on reliable evidence: Neumann v. Lafarge Canada Inc. (Richmond Cement Plant), 2009 BCHRT 187 at para. 55. The Tribunal is mindful that rules of evidence have been carefully developed by courts to define the probative value and prejudice of certain types of evidence, ensuring that fact-finders can safely and fairly rely on the evidence in the search for truth. The benefits or dangers of certain types of evidence may be equally present in Tribunal proceedings as they are in court. Where the probative value of evidence is low, or outweighed by prejudice to a party, the Tribunal may not be able to place weight on it. It may then determine that it is neither necessary nor appropriate to admit evidence that cannot be relied on.
[10] In this case, my approach to the evidence is guided by three important contexts. First, both parties are represented by legal counsel. They are equally situated to make competent arguments about the admissibility of evidence. Second, the complaint is about an event involving only two witnesses – the parties – and will turn on whose evidence I prefer. Circumstantial evidence could make the difference. The hearing, and my decision, should be focused on evidence that is probative and not unduly prejudicial. Third, the complaint involves an alleged sexual assault, which presents unique evidentiary dangers – including the prospect of relying on discredited myths about people who experience sexual assault. Evidence to support these types of myths has no place in a Human Rights Tribunal proceeding. By the same token, a finding of sexual assault carries significant stigma and consequence for respondents and should not be made based on evidence that the courts have found to be unreliable.
[11] With these considerations in mind, I turn to the objections at issue.
III COMPLAINT TO THE COLLEGE
[12] Ms. Boettger says that she prepared her written complaint to the College days after the alleged assault, and that it is relevant as a near-contemporaneous recollection of the events that transpired. She argues that the Tribunal frequently relies on contemporaneous notes, citing as examples Hyggen v. Teck Coal Ltd (No. 2), 2022 BCHRT 102 at para. 32 and Willis v. Blencoe, 2001 BCHRT 12 at para. 17.
[13] The Respondents argue that this document is oath helping and violates the rule against self-corroboration. They say that, as a prior consistent statement, it is presumptively inadmissible: R. v. Ellard, 2009 SCC 27 at para. 31. They argue that it is neither necessary nor appropriate, because Ms. Boettger can testify about the alleged events directly.
[14] The resolution of this objection must turn on the use that Ms. Boettger seeks to make of the document. To the extent that she is seeking to rely on this document as a prior consistent statement to bolster her evidence about the alleged assault, I agree with the Respondents that its probative value is low: Stein v. Vancouver Coastal Health Authority (No. 2), 2014 BCHRT 227 at para. 40. The fact that she has made her allegation against Dr. Bamgbade more than once is not reliable evidence to support that it is true: Ellard at para. 31. Put another way, “[c]onsistency does not enhance credibility, and the fact that the parties have consistently told the same version of events does not increase the likelihood that it is true”: Mohr v. Power Flagging and Traffic Control (Power Earth) and another (No. 3), 2026 BCHRT 40at para. 30, citing R. v. Khan, 2017 ONCA 114 at para. 41.
[15] Ms. Boettger has not argued that any of the exceptions to the prior consistent statement rule apply here. In these circumstances, I conclude that is not necessary or appropriate to admit the evidence as a prior consistent statement in circumstances where I could not safely put any weight on it.
[16] Here I distinguish Hyggen. In Hyggen, the Tribunal relied on notes taken contemporaneously in the course of the witness’s work. They were not admitted as prior consistent statements to bolster the witness’s evidence, but as a more accurate record of events that the witnesses had difficulty recalling. I also decline to follow the approach in Willis, where the Tribunal found that contemporaneous notes made by the complainant and her husband lent credibility to their evidence: para. 17. In that case, it appears that it was the respondent who introduced the complainant’s notes (para. 16) and neither party objected. The Tribunal did not consider or address whether the notes were prior consistent statements. In contrast here, the Respondent has objected based on established and persuasive legal principles.
[17] On the other hand, if Ms. Boettger seeks to rely on the document during the hearing because it is necessary to refresh her memory, different principles will apply. If that situation arises, we can deal with it during the hearing.
IV MEMORANDUM OF INVESTIGATION
[18] Ms. Boettger complained to the College about the alleged sexual assault. The College investigated the complaint under the Health Professions Act. As of April 1, 2026, this Act was replaced by the Health Professions and Occupations Act. The parties agree that it is the current Act which applies to the issue before me.
[19] In the course of its investigation, the College provided documents and information to Ms. Boettger. Ms. Boettger seeks to admit one of these documents in the hearing: a memorandum of a phone call, written by an investigator with the College, recording their telephone interview with Mr. Nichols [the Memorandum]. As I understand it, the memorandum sets out Mr. Nichol’s statement about Ms. Boettger’s condition after her August 31 appointment with Dr. Bamgbade and that she told him after the appointment that she had been assaulted.
[20] The Respondents object to admitting the Memorandum on two grounds. First, they say that it is not admissible because of s. 490 of the Health Professions and Occupations Act. Second, they say it is not admissible because it contains double and triple hearsay whose accuracy cannot be fairly tested. I address each of these arguments in turn.
A. Health Professions and Occupations Act
[21] The Health Professions and Occupations Act regulates health professions in BC. It provides that those exercising powers and duties under the Act must act in accordance with certain principles, including protecting the public from harm and discrimination, through a fair process that is respectful of the privacy of participants: s. 14(2). To that end, s. 490 addresses the compellability of information gained in the exercise of powers under the Act. It says:
Compellability of information
490 (1) Subject to subsection (2),
(a) 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 powers or performance of duties under this Act, and
(b) records relating to the exercise of powers or performance of duties under this Act are not compellable in a court or in proceedings of a judicial nature.
(2) Subsection (1) does not apply to proceedings under this Act or a federal enactment.
(3) Despite subsection (1), if a board or health occupation director is of the opinion that disclosure of knowledge or a record referred to in subsection (1) would be in the public interest, the board or director may authorize the disclosure of the knowledge or record to a court or in proceedings of a judicial nature.
[22] This section has not been judicially interpreted yet. However, decision makers have addressed its predecessor, s. 53 of Health Professions Act, which made information collected under that Act confidential and non-compellable:
Confidential information
(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 3 are 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.
[23] The purpose of this provision was “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”: Stelmaschuk v The College of Dental Surgeons of British Columbia, 2018 BCSC 2421 at para. 13; see also Beale v. Nagra, 1998 CanLII 5078 (BCCA) at para. 23. It is reasonable to assume that a similar purpose underlies s. 490 of the Health Professions and Occupations Act.
[24] In RR v. Fraser Health Authority and others, 2024 BCHRT 193, the Tribunal held that documents relating to a complaint filed with the BC College of Nurses and Midwives were inadmissible because of s. 53 of the Health Professions Act. The complaint in that case had been brought against RR by her colleagues. The documents had been inadvertently disclosed to RR by counsel for the Health Authority, and she sought to rely on them in the human rights complaint. The Tribunal interpreted s. 53 and concluded that the documents related to the exercise of duties under the Act and were confidential and non compellable. RR had no right to them, and they were not admissible.
[25] The Respondents argue that the same principles apply here. They say that the Memorandum was written by an investigator exercising duties under the Health Professions and Occupations Act, namely investigating Ms. Boettger’s complaint by interviewing a witness. As such, they say it is non-compellable, confidential, and inadmissible.
[26] Ms. Boettger argues there is an important distinction between s. 490 of the Health Professions and Occupations Act and s. 53 of the Health Professions Act. Whereas the former s. 53 was headed “Confidential Information”, the current s. 490 is headed “Compellability of information” and does not address confidentiality. She says that she is not seeking to compel the investigator to give evidence, or the College to give her any documents. She argues that, unlike in RR, the College intentionally gave her the documents in relation to her complaint. In doing so, she submits that the Tribunal could infer that the disclosure was authorized as being in the public interest, triggering the exception to confidentiality in s. 53(1)(b) of the Health Professions Act.
[27] A plain reading of s. 490 supports Ms. Boettger’s position. The provision relates to the compellability of documents from the College. The Respondents argue that it is absurd to suggest that documents may not be compellable but may be admissible. They cite College of Physicians and Surgeons of British Columbia v. Madryga, 2026 BCCA 100, where the BC Court of Appeal described ss. 26.2 and 53 of the Health Professions Act as restricting “the admissibility and compellability of records and information”: para. 46 (emphasis added). This submission overlooks that the Court was referring to s. 26.2 of the Health Professions Act, which included the following:
Subject to subsection (2), records, information or a self assessment prepared for the purposes of a quality assurance program or continuing competence program may not be received as evidence
(a) in a proceeding under this Act, or
(b) in a civil proceeding. [emphasis added]
[28] This subsection stands as an example of legislation which prohibits the admissibility of certain evidence. It is contrasted with s. 490 of the Health Professions and Occupation Act, which uses the language of “compellability”.
[29] In Beale, a doctor was sued for negligence. The patient sought the production of documents that the College had given the doctor in the course of its proceeding. The doctor objected to production, citing the predecessor to s. 53 of the Health Professions Act, which said in relevant part:
(3) Subject to the Ombudsman Act, each person employed in the administration of sections 48 to 57, including a person conducting an inquiry or investigation, shall preserve confidentiality with respect to all matters or things that come to his knowledge or into his possession in the course of his duties except
(a) as may be required in connection with the administration of sections 48 to 57 and any rules relating to those sections, or
(b) as may be authorized by the executive committee where it considers disclosure to be in the public interest.
(4) A person to whom subsection (3) applies, must not, insofar as the laws of British Columbia apply, 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 duty under sections 19.1, 25.1 or 48 to 57 except in a proceeding under this Act or the rules under section 4.
(4.1) The records of a person, to whom subsection (3) applies, are not compellable in a court or in proceedings of a judicial nature insofar as the laws of British Columbia apply except in a proceeding under this Act or the rules under section 4. [Medical Practitioners Act, RSBC 1979 c. 254, s. 61]
[30] The Court of Appeal held that the purpose of this section was “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”. In short: “What the College does or does not do is not to be used in medical malpractice suits”: para. 23. It was clear that the patient could not obtain College records directly from the College, but the Court had to consider whether the patient could obtain College records that were in the possession of the doctor. The Court asked and answered the question as follows:
Because, however, as part of the inquiry process ─ in order to permit the appellants to make full answer and defence ─ a copy was sent to the solicitor for the appellant Asfeldt, is that copy now out of the protection of the section?
I think not. To so hold would either undermine the fairness of the inquiry process ─ it might lead to the College not giving the member a full opportunity to meet the findings of consultants as expressed by them in writing ─ or would undermine the plain intent of the section. Whether one calls this a record of Dr. Galliford or a record of the College, the existence of this copy is not sufficient ground for ignoring the plain purpose of the section. [paras. 29-30, emphasis in original]
[31] The distinction between Beale and this case is that Beale dealt with an application for production of documents from the doctor. The fact that the patient was seeking a court order to compel them from the doctor rather than the College was not enough to bring them outside the legislature’s clear intention that such records would not be compelled by courts for use in civil litigation. In contrast here, no party is seeking an order to compel College records or evidence.
[32] The text of s. 490 anchors its interpretation: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para. 24. What I take from the plain text of s. 490 is that the College investigator cannot be compelled to testify about the Memorandum, and the Tribunal cannot order disclosure of records relating to College proceedings. But based on the submissions of the parties, I am not prepared to find that s. 490 bars the admissibility of College records properly in the possession of a party. I distinguish RR because, unlike Ms. Boettger, RR was not properly in possession of the records at issue, and the provision in that case preserved the “confidentiality” of College records, whereas the current provision only refers to compellability. In an exercise of statutory interpretation, and based on the limited information before me, I assume this was a deliberate choice.
[33] This decision is based on the submissions the parties have made in this case, and should not be interpreted as a definitive decision about the application of s. 490 of the Health Professions and Occupations Act in all Tribunal proceedings.
B. Hearsay
[34] There is no dispute that the Memorandum is hearsay. It is a record of what the College investigator wrote that Mr. Nichols told them. In fact, depending on its intended use, it is double or triple hearsay.
[35] As a preliminary issue, to the extent that Ms. Boettger seeks to rely on the Memorandum as evidence that she told Mr. Nichols she was assaulted that day, this is a prior consistent statement that is not admissible for the reasons I have addressed above.
[36] However, to the extent Ms. Boettger seeks to rely on the Memorandum as evidence about what Mr. Nichols directly observed about her condition after the August 31 appointment, compared to previous appointments, then I must consider whether to admit it as hearsay.
[37] The danger of admitting hearsay evidence is that it is not possible to test the person’s “perception, memory, narration, or sincerity” through cross-examination or direct observation: R. v. Bradshaw, 2017 SCC 35 at para. 26. Notwithstanding these dangers, hearsay may be admissible where it is necessary and reliable: e.g. Neumann at para. 55; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 20.
[38] I am satisfied that the Memorandum is necessary to present Mr. Nichols’ account of what happened after the August 31 appointment. Mr. Nichols has passed away. The investigator cannot be compelled to testify: Health Professions and Occupations Act, s. 490(1)(a). There is no other way that Ms. Boettger can present this evidence. Here I do not find it determinative, as the Respondents argue, that Ms. Boettger also saw or spoke to other people on the day of the alleged assault who could be called to testify. These other people cannot attest to what Mr. Nichols observed when he drove Ms. Boettger home from the appointment.
[39] This leaves the issue of reliability. Threshold reliability is “a function of the circumstances which the statement in question was made”: R v. Smith, 1992 CanLII 79 (SCC) at para. 33. It is established where the hearsay is sufficiently reliable to overcome the dangers from admitting it. Reliability may be procedural (“adequate substitutes for testing truth and accuracy”) or substantive (“sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy”): Bradshaw at para. 27.
[40] Here, I agree with Ms. Boettger that there are aspects of the Memorandum which support its threshold reliability. It was created by an investigator exercising duties under the Health Professions Act. In that role, they were required to serve and protect the public and uphold the public interest and employ procedures that are transparent, objective, impartial and fair: Health Professions Act, s. 16(1) and (2). According to Ms. Boettger, it appears the investigator wrote the Memorandum on the same day as they interviewed Mr. Nichols.
[41] However, these indicia speak to the reliability of the investigator’s evidence – not Mr. Nichols’, which is one step further removed. As far as I am aware, there is no recording or direct statement from Mr. Nichols – only the investigator’s notes of what he said. The parties have no way to know or test whether the Memorandum is a complete and accurate record of what Mr. Nichols told the investigator, never mind whether it was true. I am not persuaded at this point that the circumstances here are sufficient to overcome the dangers of double hearsay, and the potential prejudice to the Respondents of admitting the evidence.
[42] I distinguish Byer v. Stratascape Property Maintenance Inc. and another, 2023 BCHRT 215, a case relied on by Ms. Boettger. In that case, the Tribunal admitted and considered a communication log from WorkSafeBC setting out statements allegedly made by a respondent to a person at WorkSafeBC: para. 50. In doing so, however, the Tribunal noted that it was considering this evidence in the context of a preliminary application to dismiss the complaint and was not deciding the ultimate admissibility or weight at a hearing: para. 50.
[43] At this point, I find the potential probative value of the Memorandum is low and outweighed by the prejudice to the Respondents of admitting it without a way to test its truth. If new or different evidence about the circumstances of this Memorandum emerge during the hearing, it is open to Ms. Boettger to ask me to reconsider my decision based on that new information. Based on what is before me now, I find that it is inadmissible.
V EVIDENCE OF DANIEL BAMGBADE
[44] The Respondents seek to call Dr. Bamgbade’s son, Daniel, to testify. They say that Daniel will testify about an interaction that he had with Ms. Boettger when he was 17 years old, namely that Ms. Boettger invited him to “hang out” at her home and this made him uncomfortable. Ms. Boettger argues this evidence is irrelevant and prejudicial, and asks the Tribunal to strike Daniel from the Respondents’ witness list.
[45] The resolution of this issue turns on whether Daniels’ evidence may be relevant to a material issue in the complaint. I defer my final decision until the hearing, to be assessed in a fuller evidentiary context. However, at this stage I offer my preliminary assessment based on the parties’ arguments so far.
[46] The Respondents make four main arguments about why Daniel’s evidence is relevant and important.
[47] First, the Respondents argue that Daniel’s evidence is relevant to Ms. Boettger’s character and credibility. They rely on criminal cases holding that evidence regarding a non-accused witness’ character is admissible to establish a character trait or disposition relevant to their credibility: R. v. Jerace, 2021 BCCA 94 at para. 91.
[48] I begin with the observation that this is not a criminal trial. Dr. Bamgbade is not a criminal accused, and is not protected by constitutional presumptions of innocence that animate some of the evidentiary rules in criminal proceedings. Rather, this is an administrative proceeding, where both parties have equal standing and the focus is on a fair and efficient resolution of the complaint.
[49] Regardless, the Respondents have not explained how Daniel’s evidence may constitute “evidence of non-charged criminal or unethical conduct” relevant to Ms. Boettger’s credibility. Assuming Daniel’s evidence were accepted, it is not clear how inviting a 17-year-old to “hang out” is evidence that Ms. Boettger is dishonest and cannot be trusted to tell the truth under oath. I distinguish R v. Schirmer, 2022 BCCA 214, where a key police officer witness was investigated for obstructing justice. On their face, the allegations against the officer raised questions about his “veracity, trustworthiness, commitment to ethical practice as a police officer, including in the gathering of evidence, divided loyalties, potential conflicts of interest and a possible motive to fabricate”: at para. 87. In contrast here, Daniel’s “allegations” against Ms. Boettger do not – on their face – speak to whether or not she is likely to have fabricated allegations of sexual assault.
[50] Next, the Respondents argue that Daniel’s evidence may be relevant to contradict Ms. Boettger’s account of this incident and undermine the credibility of her evidence. The Respondents say they intend to cross-examine Ms. Boettger about the incident and, if she denies it occurred, they will rely on Daniel’s evidence to show that her evidence generally is not credible. Neither party made submissions about the collateral facts rule, which would appear to apply to Ms. Boettger’s evidence on a collateral issue to the complaint. I leave this issue open to be resolved at the hearing.
[51] Third, the Respondents argue that Daniel’s evidence is relevant to Ms. Boettger’s “general personality and disposition with staff members at the clinic”, which they say is to be “unusually open and transparent”. They say that this stands in contrast with her failure to disclose the alleged assault to Clinic staff right after it happened, undermining the credibility of the allegation. Ms. Boettger says this argument invites the Tribunal to make the prohibited inference that her failure to raise a “hue and cry” immediately after the alleged assault undermines her credibility: R v. DD, 2000 SCC 43 at para. 60; R v. Kruk, 2024 SCC 7 at para. 41.
[52] On its face, it is not clear how I could rely on Daniel’s evidence to draw any conclusions about the fact that Ms. Boettger did not immediately disclose the alleged assault to Clinic staff. I share Ms. Boettger’s concerns about the implications of this argument, which will have to be approached mindful of the discredited myths about how people are supposed to act after a sexual assault.
[53] Finally, the Respondents argue that Daniel’s evidence may be relevant to Ms. Boettger’s potential animus against Dr. Bamgbade, and her motive to falsify her allegations. This theory is difficult to assess at this stage. I will consider the parties’ submissions about the issue in the fuller context of their arguments and evidence. If this is a genuine theory of the defence, with some foundation, then they can advance it. If, however, the theory is so implausible as to suggest that the true purpose is – as Ms. Boettger argues – simply to disparage her, then it will not be admitted.
[54] We will revisit whether Daniel may testify during the hearing, after Ms. Boettger has presented her case and before Daniel is called.
VI CONCLUSION
[55] Subject to different circumstances arising in the hearing, Ms. Boettger’s complaint to the College and the Memorandum are inadmissible. I will make my final decision about Ms. Boettger’s objection to Daniel Bamgbade’s evidence during the hearing.
Devyn Cousineau
Vice Chair