Hung v. Gardiner et al., (2003) 184 B.C.A.C. 4 (CA)

• Judge: Ryan, Hall and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 05, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 184 B.C.A.C. 4 (CA);2003 BCCA 257

Hung v. Gardiner (2003), 184 B.C.A.C. 4 (CA);

    302 W.A.C. 4

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. MY.022

Christine Hung (appellant/plaintiff) v. Brian C. Gardiner, Donald Willoughby, Bryant McAfee, Jim P. Mills, Barbara Carle-Thiesson, Judy Garner, D. Ted MacCormac, Mark McGorman, Sunny Mathieson, W. Wayne McIlroy, The Institute of Chartered Accountants of British Columbia (respondents/defendants)

(CA030057; 2003 BCCA 257)

Indexed As: Hung v. Gardiner et al.

British Columbia Court of Appeal

Ryan, Hall and Levine, JJ.A.

May 6, 2003.

Summary:

The plaintiff, a member of the Law Society and the Certified General Account­ants Association, was employed by a firm of chartered accountants. As a result of actions taken by her during her employment, her supervisor was investigated and reprimanded by the Professional Conduct Inquiry Com­mittee (PCEC) of the Institute of Chartered Accountants. The members of the PCEC decided that the Law Society and CGA Association should be informed of the plain­tiff's conduct and a report of the investigator was forwarded to those bodies. Neither body chose to investigate further or take discipli­nary action against the plaintiff. The plaintiff sued the PCEC members for damages for defamation, malicious prosecution, negli­gence, breach of confidentiality under the Freedom of Information and Protection of Privacy Act, breach of the Accountants (Chartered) Act and bylaws, misfeasance in public office, breach of the Privacy Act, invasion of privacy and conspiracy.

The British Columbia Supreme Court, in a decision reported at [2002] B.C.T.C. 781, following a preliminary objection by the plaintiff, ruled that it was appropriate to decide the matter under rule 18A. The plain­tiff appealed this ruling.

The British Columbia Supreme Court, in a decision reported at [2002] B.C.T.C. 1234, held that all the plaintiff's claims were barred by the defence of absolute privilege. The plaintiff also appealed this decision.

The British Columbia Court of Appeal, hearing both appeals together, dismissed both appeals.

Crown - Topic 7402

Examination of public documents - Free­dom of information - Disclosure - Par­ticular documents - Investigatory reports - A member of the Law Society and CGA Association working for a firm of char­tered accountants gave information about her supervisor to the Professional Conduct Inquiry Committee (PCEC) of the Institute of Chartered Accountants, resulting in his discipline - The PCEC reported the mem­ber's conduct to the Law Society and CGA Associ­ation, but both bodies declined to investi­gate or discipline the member - The mem­ber sued the PCEC members for, inter alia, breach of the Freedom of Information and Protection of Privacy Act - The British Columbia Court of Appeal affirmed that all claims were barred by absolute privilege - Complaints made to these professional quasi-judicial bodies about a member's conduct were absolutely privileged, regard­less that the bodies declined to proceed - See para­graphs 6 to 37.

Libel and Slander - Topic 2928

Defences - Absolute privilege - State­ments made in the course of judicial, quasi-judicial or legal proceedings - A member of the Law Society and CGA Association working for a firm of char­tered accountants gave information about her supervisor to the Professional Conduct Inquiry Committee (PCEC) of the Institute of Chartered Accountants, which resulted in his discipline - The PCEC reported the member's conduct to the Law Society and CGA Associ­ation, but both bodies declined to investi­gate or discipline the member - The mem­ber sued the PCEC members for, inter alia, defama­tion - The British Colum­bia Court of Appeal affirmed that all the member's claims were barred by absolute privilege - Complaints made to these pro­fessional quasi-judicial bodies about a member's conduct were absolutely privi­leged, re­gardless that the bodies declined to pursue the matter - See paragraphs 6 to 37.

Libel and Slander - Topic 2930

Defences - Absolute privilege - Com­munications with law society - [See Libel and Slander - Topic 2928 ].

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - The British Columbia Court of Appeal held that the filing of a jury notice under rule 39(26) in a defama­tion action did not preclude a summary trial under rule 18A - See paragraphs 38 to 60.

Torts - Topic 5410

Invasion of privacy - General - Violation of privacy - Statutory tort - A member of the Law Society and CGA Association working for a firm of chartered account­ants gave information about her supervisor to the Professional Conduct Inquiry Com­mittee (PCEC) of the Institute of Chartered Accountants, which resulted in his disci­pline - The PCEC reported the member's conduct to the Law Society and CGA Association, but both bodies declined to investigate or discipline the member - The member sued the PCEC members for, inter alia, breach of the Privacy Act - The Brit­ish Columbia Court of Appeal affirmed that all the mem­ber's claims were barred by absolute privi­lege - Complaints made to these pro­fessional quasi-judicial bodies about a member's conduct were absolutely privi­leged, re­gardless that the bodies declined to pursue the matter - See para­graphs 6 to 37.

Torts - Topic 5585

Invasion of privacy - Defences - Privilege - Court or quasi-judicial proceedings - A member of the Law Society and CGA Association working for a firm of char­tered accountants gave information about her supervisor to the Professional Conduct Inquiry Committee (PCEC) of the Institute of Chartered Accountants, which resulted in his discipline - The PCEC reported the member's conduct to the Law Society and CGA Association, but both bodies declined to investigate or discipline the member - The member sued the PCEC members for, inter alia, invasion of privacy - The British Columbia Court of Appeal affirmed that all the member's claims were barred by abso­lute privilege - Complaints made to these professional quasi-judicial bodies about a member's conduct were absolutely privi­leged, re­gardless that the bodies declined to pursue the matter - See paragraphs 6 to 37.

Torts - Topic 5709

Conspiracy - General - Defences - Abso­lute privilege - A member of the Law Society and CGA Association working for a firm of chartered accountants gave infor­mation about her supervisor to the Pro­fessional Conduct Inquiry Committee (PCEC) of the Institute of Chartered Accountants, which resulted in his disci­pline - The PCEC reported the member's conduct to the Law Society and CGA Association, but both bodies declined to investigate or discipline the member - The member sued the PCEC members for, inter alia, conspir­acy - The British Columbia Court of Appeal affirmed that all the mem­ber's claims were barred by absolute privi­lege - Complaints made to these pro­fes­sional quasi-judicial bodies about a mem­ber's conduct were absolutely privi­leged, regard­less that the bodies declined to pur­sue the matter - See para­graphs 6 to 37.

Torts - Topic 6164

Abuse of legal procedure - Malicious prosecution - Actions against tribunals (incl. professional associations, discipline committees etc.) - A member of the Law Society and CGA Association working for a chartered accountants firm gave infor­mation about her supervisor to the Pro­fessional Conduct Inquiry Committee (PCEC) of the Institute of Chartered Accountants, which resulted in his disci­pline - The PCEC reported the member's conduct to the Law Society and CGA Association, but both bodies declined to investigate or discipline the member - The member sued the PCEC members for, inter alia, malicious prosecu­tion - The British Colum­bia Court of Appeal affirmed that all the member's claims were barred by abso­lute privilege - Complaints made to these pro­fessional quasi-judicial bodies about a member's conduct were absolutely privi­leged, re­gardless that the bodies declined to pursue the matter - See paragraphs 6 to 37.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - A member of the Law Society and CGA Association working for a chartered accountants firm gave infor­mation about her supervisor to the Pro­fessional Conduct Inquiry Committee (PCEC) of the Institute of Chartered Accountants, resulting in his discipline - The PCEC reported the member's conduct to the Law Society and CGA Association, but both bodies declined to proceed against the member - The member sued the PCEC members for, inter alia, misfeasance in public office - The British Columbia Court of Appeal affirmed that all claims were barred by absolute privilege - Complaints made to these professional quasi-judicial bodies about a member's conduct were absolutely privi­leged, regardless that the bodies declined to proceed - See para­graphs 6 to 37.

Cases Noticed:

Sussman v. Eales et al. (1985), 33 C.C.L.T. 156 (Ont. Gen. Div.), revd. (1986), 25 C.P.C.(2d) 7 (Ont. C.A.), appld. [para. 6].

Lincoln v. Daniels, [1962] 1 Q.B. 237 (C.A.), consd. [para. 13].

Rajkhowa v. Watson et al. (1998), 167 N.S.R.(2d) 108; 502 A.P.R. 108 (S.C.), consd. [para. 13].

O'Connor v. Waldron, [1935] A.C. 76 (H.L.), reving. [1932] S.C.R. 183, consd. [para. 13].

Boyachyk v. Dukes (1982), 37 A.R. 199; 136 D.L.R.(3d) 28 (Q.B.), consd. [para. 23].

Marrinan v. Vibart, [1962] 3 All E.R. 380 (C.A.), refd to. [para. 34].

Royal Aquarium and Summer and Winter Garden Society v. Parkinson, [1892] 1 Q.B. 431, refd to. [para. 35].

Pentecost v. Kowal, [1988] B.C.J. No. 130 (C.A.), consd. [para. 42].

Garcha v. Baas, [1995] B.C.J. No. 2946 (S.C.), refd to. [para. 45].

Burke v. Neil, [1996] B.C.J. No. 838 (S.C.), refd to. [para. 45].

Otto v. Holburn, [1997] B.C.J. No. 1763 (S.C.), refd to. [para. 45].

Bulic v. Insurance Corp. of British Columbia, [1998] B.C.T.C. Uned. 55 (S.C.), refd to. [para. 45].

Einarson v. Richmond (City), [1998] B.C.T.C. Uned. C64 (S.C.), refd to. [para. 45].

Caleta v. Honaizer, [2001] B.C.T.C. 1726 (S.C.), refd to. [para. 45].

Bush v. Lundstrom, [2001] B.C.T.C. 170 (S.C.), refd to. [para. 45].

McLean v. Southam Inc. et al., [2002] B.C.A.C. Uned. 62 (C.A.), consd. [para. 46].

Weisenberger v. Johnson & Higgins (1998), 131 Man.R.(2d) 274; 187 W.A.C. 274 (C.A.), leave to appeal denied (1999), 248 N.R. 406; 142 Man.R.(2d) 160; 212 W.A.C. 160 (S.C.C.), refd to. [para. 48].

Hall v. Puchniak et al. (1997), 122 Man.R.(2d) 256 (Q.B. Master), affd. [1998] M.J. No. 610 (Q.B.), refd to. [para. 48].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 39(26), rule 39(27) [para. 39].

Authors and Works Noticed:

McLachlin and Taylor, British Columbia Practice (2nd Ed. 1991) (Looseleaf), generally [para. 44].

Odgers, Libel and Slander (6th Ed. 1929), p. 195 [para. 28].

Counsel:

C. Hung, appearing in person;

D.B. Wende, for the respondents.

This appeal was heard at Vancouver, British Columbia, on March 5, 2003, before Ryan, Hall and Levine, JJ.A., of the British Columbia Court of Appeal. On May 6, 2003, Levine, J.A., delivered the following decision.