All areas of civil litigation have their quirks. Defending a professional in a civil action is no different. For professional liability work, one quirk is the possibility of both a disciplinary proceeding and a civil action occurring at the same time, or one after the other. This can influence how the defence of a professional in a civil action is conducted.
When we say professional, we mean any professional that is governed by a body with the power to penalize conduct. This includes architects, police officers, engineers, health care professionals, accountants, the list goes on. These regulatory bodies are typically bestowed with powers, granted by statute, to investigate and prosecute complaints against their members through disciplinary hearings.
The disciplinary process is separate from the civil court system, but the same incident or allegation involving a professional can lead to both a civil claim and a disciplinary proceeding.
This paper is an accompaniment to a presentation on the intersection of civil litigation and disciplinary proceedings. Although the presentation focused on a number of topics, this paper provides answers to questions on evidentiary considerations when defence counsel is faced with parallel proceedings.
Can Evidence Gathered in a Disciplinary Proceeding be Used in a Civil Action?
Generally, no.
Witness testimony and documentary evidence gathered during a disciplinary investigation and/or proceeding are usually inadmissible in civil litigation. This is by operation of confidentiality provisions in statutes and regulations that govern various professional regulatory bodies. The wording of each statute and regulation varies, and so do the exceptions.
For example, under the Alberta Architects Act, incriminating testimony of a witness cannot be used against said witness in a civil proceeding, except in a prosecution for perjury or giving of contradictory evidence.[1]
Under the British Columbia Professional Governance Act (“PGA“), however, confidentiality protections over documents and witness testimony can be waived by the superintendent or board if it is “authorized as being in the public interest”.[2]
Thus, there are different tests and exceptions for use of evidence gathered in a disciplinary hearing, depending on which statute applies. Such evidence is generally inadmissible, however.
Can a Decision made at a Disciplinary Hearing be used as Evidence in a Civil Action?
Generally, yes.
Many disciplinary decisions are publicly available. Case law in Ontario, Alberta and British Columbia has found that prior disciplinary decisions can be admitted as evidence in a civil trial.[3] Generally, these decisions are admitted in negligence actions on the issue of whether the defendant professional breached the standard of care.
Just because a decision is admitted, however, does not mean a trier of fact will simply follow it, and make the same decision. No single piece of evidence can replace a Justice or Jury. Instead, there must be a determination of the weight to give a disciplinary decision.[4]
The weight given to a disciplinary decision will depend on the nature of the process that led to the findings, what evidence was before the disciplinary panel, and the relevance of the finding in the current civil action.[5] One consideration is that many disciplinary hearings are not bound by the rules of evidence. If a disciplinary decision is based upon evidence that would be inadmissible in a civil trial, the weight of that decision may be reduced. Further, when examining the applicable standard of care, the findings of a hearing panel may be given less weight than the opinion of an expert qualified by the Court.
For example, during the trial in Dallin v Montgomery[6], the Court permitted a party to be cross-examined on a statement of facts from a prior disciplinary hearing that found their conduct deserving of sanction.
Prior to the trial in Dallin, one of the parties, who was a real estate broker, admitted they swore two false affidavits. Specifically, as part of their real estate broker license application, the broker swore affidavits stating they had never been convicted of any criminal offence. It later came to light that the broker had been convicted of two criminal offences prior to swearing these affidavits. These facts were noted in a publicly posted decision on the Real Estate Council of Alberta’s (“RECA”) website. The decision by RECA was unrelated to the issues in Dallin.
During the trial in Dallin, a lawyer put the facts of the RECA decision to the broker during cross-examination to challenge their credibility. The broker’s lawyer argued the RECA decision was inadmissible as it was unrelated to the facts of the civil trial and had not been produced in an Affidavit of Records during the discovery process. The Court determined, however, that for the limited purpose of testing the broker’s character, the RECA decision could be admitted as evidence and used in cross-examination.
We assume the introduction of this evidence significantly reduced the broker’s credibility. The use of disciplinary decisions as evidence in civil actions may be uncommon, but as shown in the Dallin case, it has the potential to change the outcome of a trial.
Can Evidence Gathered During the Discovery Process of a Civil Action be used in a Disciplinary Proceeding?
Generally, no.
The information gathered during the discovery process can only be used for litigation purposes. It is protected by an implied undertaking of confidentiality. This undertaking cannot be broken without agreement of the parties or leave of the Court. After settlement, the undertaking remains in place.
When we say discovery process, we mean the exchange of material and relevant documents, the transcripts of questioning of parties through examinations for discovery, and exchange of expert reports, among other things.
The implied undertaking rule is seen by Courts as being in the public interest. The discovery process is considered an invasion of privacy, and therefore guardrails on the use of information collected are warranted. The rationale for the implied undertaking is that it encourages settlement, narrows issues, and reduces trial by ambush. Further, parties will be more complete and candid with their discovery evidence if they are assured their evidence will not be used for collateral purposes. The implied undertaking is not absolute, however, and can be trumped by a competing public interest that is determined to be of greater importance.
The British Columbia Court of Appeal recently examined how the implied undertaking rule interacts with the public interest of professional regulatory bodies in the Association of Professional Engineers and Geoscientists of the Province of British Columbia v Engineers X[7].
In this case, the Association of Professional Engineers and Geoscientists of the Province of British Columbia (“EGBC”) was provided with unsolicited information regarding alleged misconduct of engineers. This information was collected through the discovery process that had already been settled, and thus its use was limited to the purposes of litigation by way of the implied undertaking. The EGBC asked the Court to waive the implied undertaking, arguing that the use of this information was necessary to protect the public interest and regulate misconduct of engineers.
The Court did not permit the EGBC to use the information provided. The Court stated that they would only permit the use of information protected by the implied undertaking when the public interest in doing so outweighed the harm the disclosure would cause to the litigation parties. In this case, the Court did not find that the public interest of the EBGC’s regulation of engineers outweighed the need to protect the information provided by parties during litigation. The EGBC was not permitted to use the information.
We note however that since the facts that gave rise to this case occurred, the PGA was enacted. The PGA replaced several previous individual acts governing professional bodies and put them under the one Act.
Of note is section 58 of the PGA, which requires professionals to report conduct that poses a risk of significant harm to the environment or the public, “even if the information on which the belief is based is confidential and disclosure is prohibited under another Act”.
This wording suggests that, in certain situations, a professional governed by the PGA has a duty to report conduct even if the information they are disclosing is bound by an implied undertaking of confidentiality.
We anticipate that a similar factual scenario will arise again, and the Court will provide a ruling on whether section 58 of the PGA provides a statutory carve out of the implied undertaking rule. If the Court does find that the reporting requirements of the PGA override the implied undertaking rule, this may significantly change the conduct of professional liability litigation, and reduce the protections afforded by settling an action before trial.
[1] Architects Act, RSA 2000, c A-44, s. 44.
[2] Professional Governance Act, SBC 2018, c 47, s. 109.
[3] Etienne v. McKellar General Hospital, [1994] O.J. No. 2602; Spectra Architectural Group v. St. Michael’s Extended Care Centre Society, 2001 ABQB 887 [Spectra]; Clarkson v Elding, 2020 BCSC 72 [Clarkson].
[4] Spectra at para 32; Clarkson at para 53.
[5] Ibid.
[6] 2010 ABQB 178 (“Dallin“)
[7] Association of Professional Engineers and Geoscientists of the Province of British Columbia v Engineers X, 2023 BCCA 211
