College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner),

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Hall, Low and Levine, JJ.A.
• Neutral Citation: 2002 BCCA 665
• Citation: 2002 BCCA 665,(2002), 176 B.C.A.C. 61 (CA),[2003] 2 WWR 279,9 BCLR (4th) 1,176 BCAC 61,23 CPR (4th) 185,[2002] CarswellBC 2942,[2002] BCJ No 2779 (QL),[2002] B.C.J. No 2779 (QL),(2002), 176 BCAC 61 (CA),176 B.C.A.C. 61
• Date: 12 December 2002

College of Physicians v. Privacy Commr. (2002), 176 B.C.A.C. 61 (CA);

    290 W.A.C. 61

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. JA.048

The College of Physicians and Surgeons of British Columbia (appellant/petitioner) v. The Information and Privacy Commissioner of British Columbia (respondent/respondent) and Dr. Doe (respondent) and The Applicant (respondent) and The Attorney General of British Columbia (respondent)

(CA028608; 2002 BCCA 665)

Indexed As: College of Physicians and Surgeons (B.C.) v. Information and Privacy Commissioner (B.C.) et al.

British Columbia Court of Appeal

Hall, Low and Levine, JJ.A.

December 12, 2002.

Summary:

The applicant complained to the College of Physicians about the conduct of her em­ployer, a physician. A lawyer acting for the College obtained the opinions of four experts, two in writing (documents 1 and 2) and two orally, to assist the College in as­sessing the basis for the complaint. The lawyer prepared memoranda summarizing the oral opinions (documents 3 and 4). As well, the College received a letter from one expert whose opinions was initially given orally (document 5). The College advised the applicant that it concluded that no action would be taken. The applicant requested disclosure of the documents. The College refused, claiming the documents were exempt from disclosure on the ground of solicitor-client privilege. The applicant applied to the Information and Privacy Commissioner for review of the College's refusal.

The Commissioner held that the documents were not subject to solicitor-client privilege, or protected from disclosure by s. 13 of the Freedom of Information and Protection of Privacy Act. The College applied for judicial review of the Commissioner's decision.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 726, dismissed the application. The College appealed. Both the College and the applicant moved to admit fresh evidence on the appeal.

The British Columbia Court of Appeal allowed the appeal. The court held that the documents, except for the part of document 3 which contained the comments of the College's lawyer, were not subject to solici­tor-client privilege. The court dismissed the applications to admit fresh evidence.

Crown - Topic 7203

Examination of public documents - Free­dom of information - Bars - Solicitor-client privilege - The British Columbia Court of Appeal discussed solicitor-client privilege, distinguishing "legal advice privilege" and "litigation privilege" - See paragraphs 21 to 33.

Crown - Topic 7203

Examination of public documents - Free­dom of information - Bars - Solicitor-client privilege - The College of Physici­ans' lawyer obtained written and oral ex­perts' opinions during investigation of a com­plaint against a doctor - The lawyer pre­pared memoranda summarizing the oral opinions - A written opinion from one expert whose opinion was initially oral, was also received - The British Columbia Court of Appeal held that (1) the College's lawyer acted as a lawyer, not an investiga­tor; (2) the third party com­munications did not take place within the relationship between the lawyer and her client (the College), and (3) the experts never stood in the College's place for the purpose of obtaining legal advice - Only that part of one document recording the lawyer's com­ments was subject to solicitor-client ("legal advice") privilege - See paragraphs 35 to 71.

Crown - Topic 7203

Examination of public documents - Free­dom of information - Bars - Solicitor-client privilege - The College of Physici­ans' lawyer obtained written and oral ex­perts' opinions in the course of investigat­ing a complaint against a doctor - The lawyer prepared memoranda summarizing the oral opinions - A written opinion from one expert whose opinion was initially oral, was also received - The British Col­umbia Court of Appeal held that litigation was not either in reasonable prospect or in progress at the time the documents were created - Therefore, the documents were not produced for the dominant purpose of litigation and not subject to solicitor-client ("litigation") privilege - See paragraphs 72 to 91.

Crown - Topic 7208.1

Examination of public documents - Free­dom of information - Bars - Advice, pro­posals, analyses or policy options de­v­eloped for government or public body - The College of Physicians' lawyer ob­tained written and oral experts' opinions in the course of investigating a complaint against a doctor - The Freedom of Infor­mation and Protection of Privacy Act, s. 13(1), provided that information that would reveal "advice or recommendations" devel­oped by or for a public body or minister may be exempted from disclosure - The British Columbia Court of Appeal held that the College could refuse to disclose the documents pursuant to s. 13(1) - See para­graphs 96 to 115.

Crown - Topic 7213

Examination of public documents - Free­dom of information - Bars - Where non­disclosure provided by statute - [See Crown - Topic 7208.1 ].

Crown - Topic 7217

Examination of public documents - Free­doms of information - Bars - Inseverabil­ity - The British Columbia Court of Appeal disagreed that "policy consider­ations" were relevant to whether part of a document that was privileged may be severed from another part of the document that was not privi­leged - The court stated that if a document was privileged, no part of it may be sub­ject to disclosure under the Freedom of Information and Protection of Privacy Act - See paragraph 69.

Evidence - Topic 4230

Witnesses - Privilege - Lawyer-client com­­munications - General - [See first Crown -Topic 7203 ].

Evidence - Topic 4238

Witnesses - Privilege - Lawyer-client com­­munications - Documents prepared in con­tem­plation of litigation - [See third Crown - Topic 7203 ].

Evidence - Topic 4242

Witnesses - Privilege - Lawyer-client com­­munications - Privilege - Com­mun­ications between lawyer and third party - [See second Crown - Topic 7203 ].

Evidence - Topic 4256

Witnesses - Privilege - Lawyer-client com­munications - Waiver - Putting com­­muni­cation in issue - The College of Phys­i­cians' lawyer obtained written and oral experts' opinions in the course of investi­gating a complaint against a doctor - The lawyer prepared memoranda summar­izing the oral opinions - A written opinion from one expert whose opinion was initial­ly oral, was also received - The British Columbia­ Court of Appeal held that the docu­ments were not subject to solici­tor-client privilege - Further, the court held that although waiver was thus not an issue, the Chambers judge erred in finding that the College had impliedly waived privilege - See paragraphs 10 to 11, 95.

Practice - Topic 4577

Discovery - What docu­ments must be produced - Privileged documents - Attor­ney-client com­munic­ations - [See first and second Crown - Topic 7203 ].

Practice - Topic 4578

Discovery - What docu­ments must be produced - Privileged documents - Docu­ments prepared in con­templation of litiga­tion - [See third Crown - Topic 7203 ].

Practice - Topic 4583

Discovery - What docu­ments must be produced - Privileged documents - Opinion expressed in investi­gative report - [See second Crown - Topic 7203 ].

Practice - Topic 4585

Discovery - What docu­ments must be produced - Privileged documents - Waiver - [See Evidence - Topic 4256 ].

Statutes - Topic 2401

Interpretation - Interpretation of words and phrases - General principles - General - The British Columbia Court of Appeal noted that different words contained in a statute should be given different mean­ings, but the same word should be given the same meaning - See paragraph 107.

Words and Phrases

Advice - The British Columbia Court of Appeal held that the word "advice" in s. 13(1) of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, was not limited to advice from counsel - The court disagreed that advice must include a communication about future action and not just an opinion about an existing set of circumstances - "Advice" did not have the same meaning as "recom­mendations" - "Advice" included "infor­mation ... the purpose of which is to pres­ent background explanations or analysis ... for ... consideration in making a deci­sion" - It included an opinion involv­ing exercis­ing judgment or skill to weigh the signifi­cance of matters of fact, and included expert opinion on matters of fact on which a public body must make a decision for future action - See paragraphs 101 to 115.

Cases Noticed:

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 22].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General) (2002), 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183 (S.C.C.), refd to. [para. 23].

Legal Services Society (British Columbia) v. Information and Privacy Commission (B.C.) (1996), 140 D.L.R.(4th) 372 (S.C.), refd to. [para. 24].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 25].

Hammami v. College of Physicians and Surgeons of British Columbia (1997), 36 B.C.L.R.(3d) 17 (S.C.), refd to. [para. 25].

Human Rights Commission (Ont.) v. House et al. (1993), 67 O.A.C. 72; 115 D.L.R.(4th) 279 (Div. Ct.), refd to. [para. 25].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590; 70 C.C.C.(2d) 385, refd to. [para. 26].

Hodgkinson v. Simms (1988), 33 B.C.L.R.(2d) 129 (C.A.), refd to. [para. 26].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 180 D.L.R.(4th) 241 (C.A.), consd. [para. 27].

Gower v. Tolko Manitoba Inc. (2001), 153 Man.R.(2d) 20; 238 W.A.C. 20 (C.A.), consd. [para. 27].

Miller (Ed) Sales & Rentals Ltd. v. Cater­pillar Tractor Co. et al. (1988), 90 A.R. 323 (C.A.), consd. [para. 33].

Bank Leu AG v. Gaming Lottery Corp. et al. (2000), 132 O.A.C. 127 (Div. Ct.), consd. [para. 33].

Sealed Case, In Re (1988), 856 F.2d 268 (D.C. Cir.), consd. [para. 33].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 38].

Upjohn Co. v. United States (1981), 449 U.S. 383 (S.C.), consd. [para. 40].

British Columbia (Minister of Envi­ron­ment, Lands and Parks) v. British Col­umbia (Informa­tion and Privacy Com­missioner) (1995), 16 B.C.L.R.(3d) 64 (S.C.), consd. [para. 63].

Ontario (Minister of Finance) v. Informa­tion and Privacy Com­missioner (Ont.) (1997), 102 O.A.C. 71 (Div. Ct.), refd to. [para. 65].

Hamalainen v. Sippola (1991), 9 B.C.A.C. 254; 19 W.A.C. 254; 62 B.C.L.R.(2d) 254, refd to. [para. 72].

Thomson v. Canada (Minister of Agricul­ture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, refd to. [para. 107].

Moodie (J.R.) Co. v. Minister of National Revenue, [1950] 2 D.L.R. 145 (S.C.C.), refd to. [para. 112].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, sect. 4(2) [para. 62]; sect. 13(1) [para. 96]; sect. 14 [para. 21].

Authors and Works Noticed:

Driedger, Elmer A., Construc­tion of Stat­utes (3rd Ed. 1994), pp. 163, 164 [para. 107].

Counsel:

D. Martin, for the appellant;

P. Dickie and C. Buchanan, for the appli­cant;

W. Clark, for Dr. Doe;

M. Baird, for the Law Society of British Columbia.

This appeal was heard in Vancouver, British Columbia, on September 24 and 25, 2002, before Hall, Low and Levine, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Levine, J.A., on December 12, 2002.