Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 (Re)

2022 BCSC 361 Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 (Re), 2022 BCSC 361 Date: 20220308 Docket: S210647 Registry: Vancouver IN THE MATTER OF THE ENGINEERS AND GEOSCIENTISTS ACT, R.S.B.C. 1996, c. 116 Re: Conduct of Members of the Association of Professional Engineers and Geoscientists of the Province of British Columbia Before: The Honourable Justice Blake These Reasons for Judgment are redacted and anonymized pursuant to Court Orders made January 21, 2021 Reasons for Judgment Counsel for the Association of Professional Engineers and Geoscientists (appearing by video conference): A.D. Gay, Q.C. V. Broughton Counsel for Engineer X, X Engineering Ltd. and Engineer Y (appearing by video conference): T.A. Kowalchuk K.L. Weslowski Counsel for Engineer Z (appearing by video conference): S.H. Haakonson Counsel for City of Vancouver (not appearing): B.Jordan Place and Date of Hearing: Vancouver, B.C. November 1 to 3, 2021 Place and Date of Judgment: Vancouver, B.C. March 8, 2022 Table of Contents I. Introduction. 3 II. Background. 3 III. The Complaint and the Contested Materials. 6 IV. Affidavit ADMISSIBILITY. 7 A. [CONTENT REDACTED] 7 B. [CONTENT REDACTED] 8 C. [CONTEND REDACTED] 9 V. The Governing Professional legislation. 9 VI. The Gravamen of the Complaint. 13 VII. Should the implied undertaking of confidentiality be waived.

14 A. Leading Cases. 15 B. EGBC is Subject to the Implied Undertaking Rule. 20 C. Reasonable Expectations of Privacy of the Engineers. 20 D. Relevant Professional Regulation Case Law. 22 E. Analysis. 25 1. The Engineers' Privacy Interests. 26 2. Prejudice to the Engineers. 28 3. Investigation and Disciplinary Purposes. 28 4. Seriousness of the Alleged Offence. 30 5. EGBC's Statutory Role and Mandate. 30 6. No Improper Motive. 31 7. Effect on Insurance. 32 VIII. CONCLUSION. 32 I. Introduction [1] The Association of Professional Engineers and Geoscientists of the Province of British Columbia, which does business as Engineers and Geoscientists BC ("EGBC"), is the professional regulatory body responsible for the regulation of the engineering profession in British Columbia. [2] EGBC brings this petition seeking leave of the Court to make use of materials subject to the implied undertaking of confidentiality. The implied undertaking rule mandates that documents and information obtained through the discovery process are not to be used except for the purposes of the litigation in which the discovery is conducted, without either the agreement of the parties or leave of the court. EGBC seeks leave to use the materials in question to investigate three engineers for disciplinary purposes. In these reasons for judgement, I refer to the three engineers as Engineer X, Engineer Y and Engineer

Z (and collectively as the "Engineers"), in accordance with a sealing order and an anonymization order made in this proceeding on January 21, 2021. [3] While EGBC is to be commended for proceeding with this petition, I decline to grant the relief sought. I have carefully considered and weighed the relevant competing public interests, and I find that this is not a case where the circumstances warrant a waiver of the implied undertaking. II. Background [4] The materials in question arise from a civil action commenced in 2016 (the "Action"). The plaintiff was a young man in his twenties, who fell from a fire escape attached to an apartment building in Vancouver and suffered catastrophic injuries including quadriplegia. He alleged that the fire escape he fell from was in a state of disrepair and had no, or inadequate, supports, handrails or guardrails. [5] One of the experts retained by the plaintiff was a professional engineer and member of EGBC (the "Complainant"). On March 11, 2019, two days after the Action was settled, the Complainant sent a letter to EGBC outlining his concerns with the professional conduct of Engineers X, Y and Z (the "Complaint"), and attached four documents, all of which he had obtained through the litigation (which I will refer to collectively as the "Contested Materials"). [6] Engineers X, Y and Z are professional engineers and registered as such with

EGBC. None of the Engineers were a party to the Action. Engineer X's company (X Engineering Ltd.) was a named party, and Engineer X gave evidence on examination for discovery on behalf of X Engineering Ltd. Negligence was alleged against the defendants in the Action, and X Engineering Ltd. and another defendant filed Responses to Civil Claim alleging that further engineer firms (who employed Engineer Y and Engineer Z) had rendered professional services in connection with the fire escape. No findings of fault or liability were made by a court, and it is agreed that none of the Contested Materials were entered into evidence. [7] The Contested Materials came to the attention and possession of the Complainant as a result of his role as an expert witness in the Action. For the purpose of this hearing, EGBC requests that the Court assume that all of the Contested Materials were subject to the implied undertaking of confidentiality rule. [8] The Complainant is not a party to the current proceeding, and the issue of whether he is guilty of contempt in allegedly breaching the implied undertaking is not before me. Rather, all counsel agreed the petition should proceed on the following basis: Accordingly, EGBC invites the court to decide the current application on the basis or assumption that [the Complainant] was obligated to apply to the court for leave to disclose the Contested

Materials, or alternatively was obligated to make his complaint without reference to them. As EGBC is prepared to proceed on this basis, there is no need to make a positive finding as to whether [the Complainant] violated the implied undertaking rule. EGBC notes that if any of the Contested Materials are otherwise publicly available, their disclosure would not be prohibited by the implied undertaking rule. [9] EGBC wishes to make use of the Contested Materials in investigating the Complaint as against the Engineers. EGBC seeks an order permitting them: a. to make use of, for the purposes of investigation and disciplinary proceedings, of documents and information produced in the course of discovery in B.C. Supreme Court Action No. XXXXX (the "Action"), which documents and information are referred to in the letter sent to EGBC by the Complainant dated March 11, 2019 (the "Complaint"); and b. to have leave to apply to the court for further such orders in relation to additional information and documents which may come to its attention, as necessary. [10] EGBC alleges the Contested Materials raise issues as to whether the Engineers properly discharged their respective professional and ethical responsibilities; in particular, whether the Engineers failed to ensure: a) that the safety issues concerning the condition of the fire escape were brought to the attention of the appropriate

parties or authorities; and b) that the safety issues were properly addressed. [11] [CONTENT REDACTED] [12] [CONTENT REDACTED] [13] The City of Vancouver was served with the petition and supporting affidavits, filed a response to EGBC's petition taking no position and did not attend at the hearing. [14] The following issues were raised in the petition: a) are there admissibility issues with the affidavits tendered by the respective parties; b) which is the applicable legislation to the case at bar: the Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 or the Professional Governance Act, S.B.C. 2018, c. 47; c) what is the gravamen of the Complaint; and d) should the implied undertaking be waived in these circumstances, to permit the EGBC to use the Contested Materials and investigate the Engineers in question. III. The Complaint and the Contested Materials [15] EGBC invites me to proceed on the basis that the Complainant obtained all of the information set out in the Contested Materials as a result of his role as an expert for the plaintiff, and that he ought to have sought leave of the Court before providing his Complaint to EGBC. In the circumstances of this petition, I agree that this is the appropriate manner in which to proceed. [16] To properly determine and weigh all of the relevant public interests, it is necessary to briefly set out the role of the Complainant and

the substance of the Contested Materials. [CONTENT REDACTED] [17] [CONTENT REDACTED] [18] [CONTENT REDACTED] [19] In broad terms, the Complainant raised concerns as to whether the Engineers had met their respective professional and ethical responsibilities. [CONTENT REDACTED] [20] I pause to note that I do not accept any of the allegations the Complainant makes in the Complaint as true--that would fall to EGBC to investigate and ultimately determine. As the EGBC properly acknowledged, whether the facts asserted in the Complaint are true or accurate is not for this Court to decide on this application. Likewise, whether there is merit to the Complainant's concerns about the professional conduct of the Engineers, his views on professional responsibility, or his interpretation of the effect of Letters of Assurance and Vancouver's Bylaws, are not matters for this Court to decide. [21] [CONTENT REDACTED] [22] [CONTENT REDACTED] [23] [CONTENT REDACTED] [24] [CONTENT REDACTED] [25] [CONTENT REDACTED] [26] [CONTENT REDACTED] [27] [CONTENT REDACTED] IV. Affidavit ADMISSIBILITY [28] As a preliminary issue, there were objections to three sets of affidavits tendered, which I will deal with in turn. I consider these objections within the applicable legal framework (set out in section VII below). A. [CONTENT REDACTED] [29] [CONTENT REDACTED] a) [CONTENT REDACTED] b) [CONTENT REDACTED] c)

[CONTENT REDACTED] [30] [CONTENT REDACTED] [31] [CONTENT REDACTED] [32] [CONTENT REDACTED] [33] [CONTENT REDACTED] [34] [CONTENT REDACTED] B. [CONTENT REDACTED] [35] [CONTENT REDACTED] a) [CONTENT REDACTED] b) [CONTENT REDACTED] c) [CONTENT REDACTED] d) [CONTENT REDACTED] e) [CONTENT REDACTED] f) [CONTENT REDACTED] [36] [CONTENT REDACTED] a) [CONTENT REDACTED] b) [CONTENT REDACTED] [37] [CONTENT REDACTED] [38] [CONTENT REDACTED] [39] [CONTENT REDACTED] [40] [CONTENT REDACTED] C. [CONTEND REDACTED] [41] [CONTENT REDACTED] [42] [CONTENT REDACTED] a) [CONTENT REDACTED] b) [CONTENT REDACTED] c) [CONTENT REDACTED] [43] [CONTENT REDACTED] [44] [CONTENT REDACTED] [45] [CONTENT REDACTED] [46] [CONTENT REDACTED] [47] [CONTENT REDACTED] V. The Governing Professional legislation [48] At the time of both the Complaint being made and the filing of the petition, the governing legislation for EGBC was the Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116 (the "EGA"), which was repealed and replaced by the Professional Governance Act, S.B.C. 2018, c. 47 (the "PGA") on February 5, 2021. EGBC has a statutory mandate to uphold and protect the public interest in connection with the practice of professional engineering and geoscience. In part, EGBC fulfills this duty by investigating complaints made against its members and, if warranted, commencing disciplinary proceedings. [49] All parties

agree that the procedural rules set out in the PGA govern EGBC in any investigation it may make into the Complaint after these reasons for judgment are issued. However, EGBC argues that the substantive provisions of the EGA apply to the Engineers, whereas the Engineers argue that the substantive provisions of the PGA will be the governing legislation. [50] Despite significant argument by the parties on the issues of retrospectivity and retroactivity, the parties agreed that should an investigation into the Complaint proceed, EGBC has the sole jurisdiction to determine whether the EGA or the PGA will govern their investigation of the Complaint (and any potential discipline of any or all of the Engineers). That is not an issue before this Court. [51] Section 29 of the EGA provides for the complaints and investigations process and instructs the registrar with the process upon receiving a complaint. If there is a report to the Investigation Committee recommending further investigation (s. 29(2) of the EGA), then at the conclusion of its investigation, the Investigation Committee may: a) make recommendations to the member who was investigated (s. 30(7)(a)); b) refer the matter for review to the practice review committee (s. 30(7)(b)); but must c) recommend that an inquiry be conducted by the Discipline Committee if it has reasonable and probable grounds to believe that the member

has contravened the EGA, bylaws, or code of ethics of EGBC, or has demonstrated incompetence, negligence or unprofessional conduct (s. 30(9)). [52] The position of EGBC is that the EGA and the Code of Ethics was in force at the time of the Complaint, and the Engineers should be held to the standard of the legislation in effect at the time of the alleged Complaint, and in particular to s. 30(9). That is, to whether they have "demonstrated incompetence, negligence or unprofessional conduct". [53] The position of the Engineers is that the repeal and replacement of the EGA with the PGA should be taken into account in the required balancing of the public interests in this petition. The PGA still legislates the duty of EGBC to "serve and protect the public interest with respect to the exercise of a profession, professional governance and the conduct of registrants in the registrants' regulated practice" and to "exercise its powers and discharge its responsibilities in the public interest" (s. 22(1) of the PGA). [54] However, the PGA has repealed and replaced the standard set out in s. 30(9) of the EGA, and it no longer requires that the Investigation Committee recommend an inquiry be conducted by the Discipline Committee if it has reasonable and probable grounds to believe that the member "has demonstrated incompetence, negligence or unprofessional conduct". The PGA no longer uses

the terms "negligence" nor "unprofessional conduct" but rather uses the terms "Professional Misconduct", "Conduct Unbecoming" and "Incompetent performance of duties" (sections 22(2), 65(2) and 66(1) of the PGA and s. 9.6 of the EGBC Bylaws). [55] The Engineers argue the Court should take the following into account when balancing the public interests: a) the repeal of s. 30(9) of the EGA that the Registrar "must" recommend an inquiry be conducted by the Discipline Committee if it has reasonable and probable grounds to believe that the member has contravened the EGA, bylaws, or code of ethics of EGBC, or has demonstrated incompetence, negligence or unprofessional conduct; and b) the deletion of "negligence" as a ground for complaint, investigation or discipline. They argue that as the underlying allegation in the Action was "negligence" on the part of the defendants, the gravamen of the Complaint is likewise "negligence" on the part of the Engineers. They say the allegation made against these Engineers in the Complaint is fundamentally professional negligence; however, to investigate and/or discipline the Engineers under the new regime of the PGA, there must be conduct which is more culpable than negligence or unprofessional conduct, and which amounts to gross culpable neglect (in other words "professional misconduct"). They argue the repeal and replacement demonstrates the

legislature's determination that EGBC's investigation and discipline of "unprofessional conduct" or "negligence" are not fundamental in protecting the public interest. [56] To reiterate, whether the EGA or the PGA applies to any investigation or disciplinary action EGBC chooses to take as against any or all of the Engineers is a matter for determination by the Registrar and the Investigation Committee, as is the interpretation of the applicable statutory terms. [57] EGBC argues that I do not need to determine whether the EGA or the PGA applies, nor do I need to determine what the "gravamen" of the Complaint as set out in the Contested Materials is (whether negligence or something else). The Engineers likewise do not ask me to determine which of the two statutes would apply to these Engineers, but rather, that I take into account the repeal and replacement of the EGA, and specifically the replacement of the two provisions set out above, when I am undertaking the required balancing of the public interests before me. Put another way, the Engineers argue that I should consider that investigating engineers for negligence was not so fundamental to the public interest that it was maintained in the PGA as part of the mandate for EGBC. [58] I find it would be inappropriate to determine the applicable legislation which would govern the potential investigation and potential discipline of

any or all of the Engineers. That is within the authority of EGBC, not of this Court. I agree with counsel that it is not necessary, and would in fact be inappropriate, for me to determine at this time. [59] However, I accept the position of the Engineers that I should consider the statutory mandate of EGBC under both the EGA and the PGA. I agree that I must take this legislated replacement as part of the balancing exercise I must undertake, which involves weighing the public interest in pursuing the Complaint against the public interest in protecting the implied undertaking. VI. The Gravamen of the Complaint [60] The gravamen of the Complaint is for EGBC's Investigation Committee and Discipline Committee to determine; it is not the Court's role to analyze the substantive merits of the Complaint in this case. [61] While EGBC's position is that the gravamen of the Complaint was not just negligence, but also professional conduct and ethics, it argues that I do not need to determine the "gravamen" of the Complaint. The Engineers wish the Court to analyze the substantive merits of the Complaint itself and find that it is not serious enough to trigger an investigation under the PGA. [62] Upon a review of the Contested Materials, I am satisfied that the issues raised in the Complaint can generally be classified as concerns regarding professional conduct and ethical responsibilities,

as set out in paragraph [10] above. There was no evidence as to the relative merit or significance of the specific Complaints made against the three Engineers, and counsel advised in oral argument that EGBC has not taken any steps to investigate the Complaint once realizing the Contested Materials were provided in breach of the implied undertaking. [63] The Engineers argue that EGBC has failed to establish that the Complaint is of a serious nature, and they argue that there are only grounds to investigate and/or discipline if there is conduct which is more culpable than negligence or unprofessional conduct that amounts to gross culpable neglect, according to the new regime under the PGA. I find that without the benefit of further investigation into the substance of the Complaint, it is neither possible nor appropriate for me to determine the seriousness of the complaints made against Engineers X, Y and Z. I also find that EGBC acted entirely appropriately in not furthering their investigation when they realized the Complainant's breach of the implied undertaking. [64] Regardless of whether it was the EGA or the PGA that would govern any proposed investigation into the merits of the Complaint, I am satisfied that the primary purpose of the professional regulation legislative scheme regulating the practice of engineering is the protection of the public, and in particular, public

safety. EGBC has a statutory mandate to determine the merits of the Complaint as against the Engineers. I decline to make a determination as to whether the merits of the Complaint are significant or not. I accept that the public interest at stake on this petition is the ability of EGBC to regulate the engineering profession to fulfil its statutory mandate to protect the public, which includes investigating complaints and disciplining engineers where appropriate and necessary. Thus, I must weigh this against the public interest in ensuring the implied undertaking rule is upheld to ensure the discovery process in litigation is effective and litigants' legitimate privacy interests are protected. VII. Should the implied undertaking of confidentiality be waived [65] All parties agreed to proceed on the basis that this application should be decided on the assumption that the Complainant was subject to the implied undertaking of confidentiality with respect to the Contested Materials. Accordingly, he could not make the Complaint with reference to any of the information, or with the attachment of the documents, that he obtained through his participation in the Action, without leave of this Court to do so. As all parties agree to proceed on this assumption, I thus make no finding as to whether the Complainant violated the implied undertaking rule. That will be a matter for another judge

should an application for contempt of court be brought in the future against the Complainant. [66] This application requires that I balance the following competing public interests on the specific facts of this application: a) that the implied undertaking rule is upheld to ensure that the discovery process in litigation is effective and that litigants' legitimate privacy interests are protected; and b) that EGBC have the ability to regulate the engineering profession to protect the public, which includes being able to investigate complaints made against their registrants. [67] Upon a thorough consideration of the competing public interests on the specific facts of this application, I find EGBC has not demonstrated that its interest in investigating these Engineers is of greater weight than the principles and public interests the implied undertaking is designed to protect. I dismiss the application of EGBC for the reasons set out below. A. Leading Cases [68] The leading case on the waiver or variation of the implied undertaking is Juman v. Doucette, 2008 SCC 8 [Juman]. Before Juman, the obligation to either obtain the owner's permission or the court's leave to use information and documents obtained through the discovery process was established by the British Columbia Court of Appeal, sitting as a division of five judges, in Hunt v. Atlas Turner Inc. (1995), 4 B.C.L.R. (3d) 110

(C.A.) [Hunt]. This overturned the decision of Kyuquot Logging Ltd. v. B.C. Forest Products Limited (1986), 5 B.C.L.R. (2d) 1 (C.A.). In obiter, the Court of Appeal in Hunt alluded to the tension between the obligation to uphold the implied undertaking rule and other legal, social and moral duties, such as reporting misconduct to a professional regulatory body: [64] Accordingly, we would uphold the obligation which the law has generally imposed upon a party obtaining discovery of documents, and we would require such party, in appropriate cases, to obtain the owner's permission or the court's leave to use the documents other than in the proceedings in which they are produced. [65] In argument, Mr. Church mentioned the obligation which the Appellants contended would prevent a lawyer from reporting, for example, any fraud or professional misconduct disclosed in discovery production. With respect, the obligation would not go that far. The obligation the law imposes is one of confidentiality from improper publication. It does not supersede all other legal, social or moral duties. [69] In Juman, an infant and her parents sued the owners and operators of a daycare, alleging the infant suffered a brain injury as a result of the owner's misconduct. Ultimately, the civil action settled, and the child care worker's discovery was never entered into evidence at a trial nor were its contents

disclosed in open court. The police and the Attorney General of British Columbia ("AGBC") brought an application seeking the release of the discovery transcripts and to allow the police to apply for the transcripts by way of search warrant, subpoena or other investigative means. The appellant (defendant) brought an application to prohibit the parties to the civil action from providing discovery transcript to the police and to prohibit the police and AGBC from obtaining and using copies of the transcripts without further court order. The Supreme Court of Canada ruled that the pursuit of police investigation did not outweigh the appellant's right to privacy and right against self-incrimination; therefore, the AGBC was denied a variation of the implied undertaking. [70] The implied undertaking rule provides that "both documentary and oral information obtained on discovery is not to be used by the other parties except for the purpose of that litigation", unless a court varies the scope of the implied undertaking or a "situation of immediate and serious danger emerges": Juman at para.

4. The implied undertaking rule is broader than simply the right against self-incrimination, and it also encompasses the wrongdoing of persons other than the examinee and innocuous, non-confidential information: Juman at para. 5. [71] Even where an action has been settled, the policies underlying the implied undertaking rule remain undiminished: Juman at para.

22. The implied undertaking of the parties is to the court, that they will not use either documents or information obtained through the discovery process "for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature)." Juman at para.

27. Breaches of the implied undertaking may be remedied by a variety of means, including, but not limited to, contempt proceedings: Juman at para. 29. [72] Juman makes clear that a party is not free to disclose documents governed by the implied undertaking to a professional regulator without leave of the court. On the question of whether a non-party who receives documents disclosed in breach of the implied undertaking must seek leave of the court before using them, the Court expressly noted that it "would not preclude an application to vary an undertaking by a non-party on the basis of standing, although success on such an application would be unusual": at para.

53. The Court noted: [53] Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose. [73] In the case at bar, an expert retained by a party to the litigation was the one who disclosed documents and information subject to the implied undertaking. He disclosed the Contested Materials to EGBC on his own volition and without leave of the court. A careful review of Juman is necessary to appreciate the scope of the implied undertaking and the balancing exercise necessary to determine whether waiver of the implied undertaking is appropriate in these circumstances. [74] In Juman, the Supreme Court of Canada identified two rationales underlying the implied undertaking: a) compelled pre-trial discovery is an invasion of privacy, but it is essential to prevent surprise, encourage settlement, narrow the issues and get at the truth in the litigation; "the law thus requires that the invasion of privacy should generally be

limited to the level of disclosure necessary to satisfy that purpose and that purpose alone" (at paras. 24, 25); and b) parties will be encouraged to provide a more complete and candid discovery if they have some assurance that the documents they produce and the answers they give will not be used for any collateral or ulterior purpose (at para. 26). [75] The implied undertaking rule is not absolute and may "be trumped by a more compelling public interest": Juman at para.

30. The Supreme Court of Canada characterized the test as follows: [32] An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. In a case like the present, of course, there weighs heavily in the balance the right of a suspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself. The chambers judge took the view (I think correctly) that in this case that factor was decisive. In other cases the mix of competing values may be different. What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose. [33] I would prefer to rest the discretion on a careful weighing of the public interest asserted by the applicant (here the prosecution of a serious crime) against the public interest in protecting the right against self-incrimination as well as upholding a litigant's privacy and promoting an efficient civil justice process. What is important is the identification of the competing values, and

the weighing of one in light of the others, rather than setting up an absolute barrier to occasioning any "injustice to the person giving discovery". Prejudice, possibly amounting to injustice, to a particular litigant may exceptionally be held justified by a higher public interest, as in the case of the accused whose solicitor-client confidences were handed over to the police in Smith v. Jones, [1999] 1 S.C.R. 455, a case referred to in the courts below, and discussed hereafter. Of course any perceived prejudice to the examinee is a factor that will always weigh heavily in the balance. [36] On the other hand, courts have generally not favoured attempts to use the discovery material for an extraneous purpose, or for an action wholly unrelated to the purposes of the proceeding in which discovery was obtained in the absence of some compelling public interest. See, e.g. Lubrizol Corp. v. Imperial Oil Ltd. (1990), 33 C.P.R. (3d) 49 (F.C.T.D.), at p.

51. In Livent Inc. v. Drabinsky (2001), 53 O.R. (3d) 126 (S.C.J.), the court held that a non-party to the implied undertaking could in unusual circumstances apply to have the undertaking varied, but that relief in such cases would virtually never be given (p. 130). [Emphasis added.] [76] The onus is on the applicant "to demonstrate a superior public interest in disclosure, and the court will be mindful that an undertaking should only be set aside in exceptional circumstances": Juman at para.

38. Each case is determined on a fact-specific basis and by the weighing of certain factors against the examinee's privacy interest, such as: "the seriousness of the offence alleged, the 'evidence' or admissions said to be revealed in the discovery process, the use to which the applicant or police may put this material, whether there is evidence of malice or spite on the part of the applicant, and such other factors as appear to the court to be relevant to the court to the exercise of its discretion": Juman at para.

44. One such factor incudes recognition of the potential consequences "if the protection of the implied undertaking is seen to be diluted or diminished": Juman at para. 44. [77] The BC Court of Appeal recently clarified the Juman test in Nuchatlaht v. British Columbia, 2021 BCCA 351 [Nuchatlaht]. In Nuchatlaht, the Province sought relief of its implied undertaking and authorization to use documents produced in a prior action in a subsequent action. Both actions were related to varying degrees and had similar issues. Further, all parties to the second action (apart from one defendant) already had access to the documents previously produced. The Court of Appeal confirmed that para. 34 of Juman is the "test" to be applied and explained: [22] This is in aid of attenuating the deference otherwise owed [to] a judge's exercise of discretion; deference is dissipated in the face of an error in principle--an error in stating the correct legal test. In my view, the "exceptional circumstances" submission is something of a straw man; it is not the test to apply in setting aside the undertaking. The Appellants misread para. 32 of Juman. To repeat a portion of that paragraph: What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its

intended purpose. [23] There, the Court is not stating the test for being relieved of the undertaking; it is rather saying that exceptional circumstances will only be demonstrated on a balance of probabilities where there exists a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. Quite simply, the "public interest of greater weight" is the exceptional circumstance justifying relief from the implied undertaking. To repeat myself, this reading of para. 32 is made clear by the express statement of the test in para. 34 of Juman. [Emphasis in original.] [78] The decisions of Juman and Nuchatlaht make clear that on an application for the implied undertaking to be waived or varied, the applicant has the burden of proving there exists a public interest of greater weight than the values the implied undertaking is designed to protect, namely the protection of privacy and the complete and candid discovery process: Juman at paras. 24-26. B. EGBC is Subject to the Implied Undertaking Rule [79] EGBC has brought this petition seeking permission of the Court to use the Contested Materials, which it received from the Complainant. In my view, EGBC has followed a prudent and appropriate path by seeking leave to be relieved of the implied undertaking and to be allowed to use the Contested Materials in an investigation of the Engineers. [80] The decision of Canadian National Railway Company v. BNSF Railway Company, 2019 FC 281, confirmed that experts, who have been retained by a party and have obtained discovery material, are subject to the implied undertaking rule: para.

38. Furthermore, this Court has noted that professional regulators "should respect the court process to the extent of seeking an order to be allowed access to such material": Stelmaschuk v. The College of Dental Surgeons of B.C., 2011 BCSC 518 at para.

47. Justice Humphries made it clear that the College of Dental Surgeons of B.C. should not have considered the discovery materials without seeking an order. I agree. C. Reasonable Expectations of Privacy of the Engineers [81] The extent of the Engineers' privacy interests in the Contested Materials and the prejudice they would suffer if EGBC is allowed to use the Contested Materials are matters for this Court to balance when deciding whether to waive the implied undertaking. [82] While EGBC concedes the Complainant ought not to have disclosed the Contested Materials as he did, they take the position that Engineers Y and Z have diminished protection by the implied undertaking because neither were defendants in the Action. Therefore, neither were "prejudiced" as a result of providing discovery evidence, so they have no corresponding expectation of privacy that may accompany disclosure of the Contested Materials. [83] While Engineer X was also not a defendant in the Action, EGBC says that he nonetheless gave evidence as an authorized representative of X Engineering Ltd. and is in the "strongest position" for arguing he had an expectation of privacy. However, EGBC notes that Engineer X has failed to provide any evidence as to what information or documents in the Contested Materials came from his discovery. [CONTENT REDACTED]; therefore, EGBC argues that Engineer X's privacy

interests are accordingly not at stake. [84] Furthermore, EGBC alleges that the Engineers' expectation of privacy with respect to their work files is diminished because EGBC has authority under both the EGA and the PGA to require production of information or records in the possession or control of the Engineer and explanations upon request. EGBC contends that an engineer accepts the risk of a complaint being brought against them, whether by a client, fellow professional, litigant or a member of the public, as a result of being part of a regulated profession. [85] Finally, EGBC argues that an individual's private papers are different than documents disseminated to third parties (which some of the documents attached to the Complaint were) and that the Engineers failed to provide any evidence as to how their privacy rights are impacted on the facts of this case. [86] The Engineers acknowledge that Engineers Y and Z may have had no expectation of privacy within the discovery process in the Action itself and that Engineer X had a limited privacy interest. However, when the Complainant took the information he received as an expert in the Action, the Engineers were nonetheless entitled to the protection of the implied undertaking. [87] The Supreme Court of Canada in Juman is clear that the implied undertaking rule "includes the wrongdoing of persons other than the examinee and covers innocuous information that is neither confidential nor discloses any wrongdoing at all": at para.

5. The Court explained: [25] The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order. [88] Juman is clear that "[t]he rules of discovery were not intended to constitute litigants as private attorneys general": at para.

43. That is, in effect, what the Complainant was doing by disclosing the Contested Materials to the EGBC in the Complaint. [89] I find that the privacy interests of the Engineers are affected and must be included in the balancing of overall interests. It would be unfair to find the implied undertaking had no application to third parties: I.C.B.C. v. Titanich, 2010 BCSC 403 at para.

16. It would be wrong to find that the litigation discovery process can be permitted to function as a "dragnet" to compile evidence that can be used to the detriment of non-parties, but not to the detriment of parties. To do so would undoubtedly have a significant impact upon the discovery process, as those being discovered would have to consider whether their evidence given would impact adversely upon others. D. Relevant Professional Regulation Case Law [90] Counsel advised they are not aware of any case identical to the one before me--that is, where an expert bound by the implied undertaking produces documents and information to a professional regulatory board, reporting individuals who were not parties to the action. [91] EGBC argues that as it has not violated the implied undertaking and seeks to use the Contested Materials for a legitimate, statutorily authorized purpose, it militates in favour of the Court granting EGBC leave to make use of the Contested Materials. EGBC relies upon Power v. Parsons, 2018 NLCA 30 [Power], for the broad statement that allowing the regulatory body to investigate based on the disclosed documents "does not obstruct justice and is justified". With respect, I believe that is an overstatement of the decision in Power. [92] In Power, the Court was dealing with a different scenario. A client sued his accountant, and through the litigation process

obtained documents from his accountant and turned them over to the Institute of Chartered Accountants of Newfoundland and Labrador (the "Institute"). The accountant applied for relief from the Court, seeking, among other things, an order dismissing the complaint and preventing the Institute's investigators from "continuing with his file". While the Court of Appeal rejected the accountant's position, three judgements were written. White, J.A. wrote: [21] Nonetheless, in order to be improper, the use to which the third party puts the information must be an unjustified collateral use. A third party who inadvertently obtains information subject to an implied undertaking will not be in contempt of court for using the information if it has a statutory obligation to investigate it, since a use mandated by the legislature is justified and not an obstruction of justice. [25] The Court in Promex found that the Minister had obtained the documents innocently and used them in a manner required by statute. That is the same as the factual scenario in the case at bar. There is no evidence that the Institute induced Mr. Parsons or Vales Development to hand over the documents, but once they were obtained the Institute was permitted to investigate them by virtue of the Chartered Accountants Act, 2008, SNL 2008, c. C-9.1 (now repealed by Chartered Professional Accountants and Public Accountants

Act, SNL 2014, c. C-10.1, s. 75(1)(c). [26] To be clear, I do not mean to say that because the Chartered Accountants Act otherwise permitted the Institute to seize the documents, that the Institute does not have to comply with the proper procedures set out in it if it wishes to obtain them. Rather, once the Institute obtained them inadvertently, the Chartered Accountants Act empowered it to investigate the information, and is a legislated recognition of the fact that such a use does not obstruct justice and is justified. [Emphasis added.] [93] I do not accept the broad proposition that EGBC is advancing Power for, especially as such a proposition is contrary to the decision of Juman. Juman makes clear that the purpose of the implied undertaking is to prevent collateral use of information and documents obtained through the discovery process: at paras. 6 and 26. I do not take Power to stand for the broad proposition that professional regulatory legislation is a legislated recognition that the use of materials subject to the implied undertaking in an investigation by the professional regulator is not a purpose collateral or ulterior to the litigation in which they are demanded. Put another way, Power does not stand for the broad proposition that whenever a professional regulator wishes to make use of documents subject to the implied undertaking, the Court must find that the

statutory investigative power is a more compelling public interest than that of upholding the implied undertaking. [94] EGBC relies on the decision of Medical Council of Canada v. Elmansy, 2019 ONSC 1622 [Elmansy], where the plaintiff (a body that administers a standardized test to prospective medical residents and fellows) brought a motion to be relieved from the implied undertaking. The motion was unopposed with no one appearing for the defendant, and the Court allowed the plaintiff to identify wrongdoers who misappropriated information to the professional governing bodies. There are no reasons given for the decision to relieve the implied undertaking. [95] EGBC also relies on the decision of Kent v. Martin, 2011 ABQB 298, in which the plaintiff sought leave of the Court to file a formal complaint against his lawyer with the Law Society of Alberta on the basis of information received in the course of discovery. He had sued a journalist for defamation, and in the course of the litigation discovered the journalist's source was the plaintiff's legal counsel. He sought an order adding his lawyer to the claim, amending his pleading and for relief from the implied undertaking. Like Elmansy, there was no opposition to the application from the lawyer in question, and the Court granted the relief sought, noting: [30] In my view the authority to relieve the plaintiff of this

undertaking comes from the reasoning of the Supreme Court of Canada in Juman v. Doucette. A careful weighing of the public interest on behalf of Arthur Kent (here, the ability to complain to the governing and regulating body of his lawyer) as against the overall societal benefit of the implied undertaking rule is at play. This case truly does include a "mix of competing values" as predicted by Justice Binnie. [31] There is a price that needs to be paid in order for a higher public interest to be protected. In this case there is no prejudice to the original defendants. Robidoux [the plaintiff's lawyer] may very well face some sanction for her actions, but so does every lawyer if they are found to breach solicitor-client privilege. [96] Both cases are very different than the one before me, and they are of no assistance to the balancing exercise I must engage in. E. Analysis [97] EGBC wishes to use the Contested Materials it received from the Complainant to investigate the Engineers. Therefore, EGBC must demonstrate, on a balance of probabilities, that there exists a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation: Juman at para. 32; Nuchatlaht at paras. 22-23. [98] In this case, I must weigh the public interest in protecting the implied undertaking against the public

interest in conducting a regulatory investigation against the Engineers. Juman set out a non-exhaustive set of relevant factors to consider: · the nature of the competing public interests (para. 33); · the parties' privacy interests (para. 44); · recognition of the potential adverse effects if the protection of the implied undertaking is seen to be diluted or diminished (para. 44); · prejudice to the person who gave the discovery evidence, and whether that prejudice can be justified by a higher public interest (para. 33); · whether the disclosing party is engaged in 'mischief' of the kind the rule is designed to prevent, or whether "there is evidence of malice or spite on the part of the applicant" (paras. 37 and 44); · the seriousness of the alleged offence (para. 44); · the nature of the evidence or admissions said to be revealed in the discovery process (para. 44); · the use to which the applicant or police may put the material (para. 44); and · such other factors as appear to be relevant to the exercise of the court's discretion (para. 44). [99] EGBC argues that it is unlikely that permitting the use of the Contested Materials will have a detrimental impact on the efficacy of the implied undertaking rule. I disagree. The effect of granting the order EGBC seeks would be to allow any expert (governed by either the EGA or the PGA) to report their knowledge to their governing

regulatory body, without concern. While EGBC argued that they were seeking leave of the implied undertaking for a rare circumstance, I am unable to accept that the circumstances in this case are unique and rare. If I were to accept this argument, it would effectively result in a finding that leave should always be granted to permit disclosure to a professional regulatory body. This would inevitably have a deleterious impact on the efficacy of the implied undertaking and the conduct of civil litigation. [100] For the reasons that follow, I find that EGBC has not established on a balance of probabilities that it has a public interest of greater weight in being allowed to use the Contested Materials than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. To be clear, I make no determination on whether the EGA or the PGA applies to the substance of the Complaint, and which legislation EGBC would apply if they were to investigate the Engineers on the basis of the Complaint. Were I to grant the order sought, I would effectively authorize an exemption to the implied undertaking in all civil cases where a professional governed by either legislation is sued, whether for negligence or otherwise. This is contrary to the principles set out in Juman, and would render the implied undertaking effectively impotent in such cases.

1. The Engineers' Privacy Interests [101] I will first address the issue of the privacy interests of the three Engineers in the Contested Materials. There was no evidence before me as to which party to the Action disclosed either the documents attached to the Complaint or the facts set out in the Complaint. The only evidence tendered on this point was in the April 30, 2019 Letter, in which counsel confirmed that the Contested Materials, both the documents attached and the information within, "are protected by the common law implied undertaking of confidentiality". [CONTENT REDACTED] I accept EGBC's submissions that when engineers become members of EGBC they agree to be bound by the governing legislation, and so they agree to a partial relinquishment of a claim to privacy in the public interest: Law Society (Alberta) v. Randhawa (1996), 185 A.R. 220; [1996] 7 W.W.R. 664 (Q.B.) at para.

14. However, that is just a partial relinquishment, and I do not find that to be a convincing argument that all of the documents and information contained in the Contested Materials had no privacy interests attached to them. Further, I do not accept EGBC's argument that discovery transcripts are far more prejudicial than the documents at issue in this case, as we do not know where the facts alleged in the Complaint were derived from--whether documents or oral disclosure. [102] EGBC argues that the Engineers have not led any evidence in relation to their alleged privacy concerns relating to the specific information/documents attached to or contained in the Contested Materials. However, the Engineers clearly rely upon the implied undertaking and the importance of upholding and protecting it. [103] While I accept that Engineer X had the most significant privacy interest in the Contested Materials, as he is the only engineer who gave discovery evidence in the Action, I do not find that this matter turns on the issue of the reasonable privacy expectations of Engineers X, Y and Z. Rather, I find this matter to turn on the public interest in upholding the efficacy of the implied undertaking as compared to the public interest in regulating professions. [104] Juman is clear that the implied undertaking includes information relating to people that were not parties to the litigation and

covers innocuous information that is neither confidential nor discloses any wrongdoing. While Engineers Y and Z may not have the same privacy interest in the information disclosed in the Action as Engineer X, I find that information provided about non-parties must be given the same protection under the implied undertaking rule. To find otherwise would inevitably weaken its protection and have an adverse impact upon the willingness of those being discovered to provide fulsome and responsive evidence.

2. Prejudice to the Engineers [105] EGBC further argues that the Contested Materials themselves are not prejudicial to any of the Engineers, but rather, that the Complaint itself is prejudicial. However, I do not find this to be persuasive. The lack of specific evidence of prejudice does not ameliorate the ramifications of a breach of the implied undertaking to the Engineers and to the public itself. [106] With respect to Engineer X, EGBC argues that the issues raised against him by the Complainant are the same or similar to allegations advanced against X Engineering Ltd. in the Action and that this militates in favour of granting leave. EGBC also argues that as a professional regulatory body, EGBC has a wider scope of investigatory powers and is not subject to the same restrictions that apply to police conducting a criminal investigation. They say they would be allowed to obtain a member's professional files pursuant to the governing legislation. However, EGBC would not have known to seek any of the Engineers' professional files, let alone which specific files, without the Complainant's breach of the implied undertaking. Neither of these arguments is sufficient to obtain an automatic waiver of the implied undertaking.

3. Investigation and Disciplinary Purposes [107] EGBC did not argue in favour of a general rule that leave should always be granted to permit disclosure to a professional regulatory body. In fact, EGBC acknowledged that "such a rule would be inconsistent with Juman." Nonetheless, that is the effect of their argument. [108] EGBC asserts that the public interest at stake on this application is the ability of EGBC to regulate the engineering profession to fulfill its statutory mandate to protect the public, which includes investigating complaints and disciplining registrants where appropriate. They argue that unless I allow the waiver of the implied undertaking, I will be interfering with their legislated process. [109] I accept that EGBC has the statutory mandate to uphold and protect the public interest with the practice of professional engineering and geoscience. I also accept that EGBC's desire to use the Contested Materials to investigate the Engineers is in the public interest. However, I do not accept that EGBC has proven on a balance of probabilities that its desire to investigate this specific Complaint against the Engineers is a public interest of greater weight than the values the implied undertaking is designed to protect. [110] EGBC argued that this case is a rare circumstance that warrants a variance or waiver of the implied undertaking. However, EGBC advanced no

evidence, either by the Complainant or a representative of EGBC, as to why this specific investigation into these specific engineers is in the public interest. Rather, they rely solely upon their statutory mandate as evidence of the importance of this investigation. Their focus was on the general importance of the EGBC as a regulatory body. They argued that the public expects that professional regulatory legislation will be followed, and they argued no evidence was necessary to prove this point. [111] The logical conclusion of that argument is that EGBC's statutory mandate itself would always be of greater weight than the values the implied undertaking is designed to protect. That simply cannot be. [112] The Engineers argued that there is a potential "chilling effect" should the Court grant leave to make use of the Contested Materials. They argue that every professional regulator, merely because they have a statutory mandate of protecting the public, would always be found to be entitled to use materials subject to the implied undertaking, as their public interest mandate would outweigh the public interest in protecting the implied undertaking. I agree. Varying or waiving the implied undertaking in this case would have the potential to significantly dilute the protections afforded by the implied undertaking.

4. Seriousness of the Alleged Offence [113] As already set out, I make no determination in this case with respect to the seriousness of the Complaint or its merit. EGBC quite rightly argues that this is for the EGBC to determine, if it is allowed to use the Contested Materials. However, EGBC bears the burden of proof at first instance, and it has not established that the Complaint alleges serious offences. On the basis of the evidence before this Court, it is not possible to characterize the Complaint as either a serious one or a minor one. The documents provided by EGBC were not adduced for the truth of their contents but rather as evidence the Complaint was made and received. The assertion by EGBC that "the public interest in this case is great" is insufficient without any supporting evidence.

5. EGBC's Statutory Role and Mandate [114] I do not accept EGBC's argument that refusing to waive the implied undertaking in these circumstances interferes with EGBC's statutory role and mandate. EGBC argues that the legislature seeks to encourage professionals to bring complaints against fellow registrants when appropriate, and that this is a reflection of the importance of the public interest at stake. However, this legislated encouragement is not, in and of itself, enough to justify that this is an interest of greater weight than the values the implied undertaking is designed to protect. [115] The Code of Ethics set out pursuant to the EGA provided, inter alia, that members shall: 9. Report to their association or other appropriate agencies any hazardous, illegal or unethical professional decisions or practices by members, licensees or others. [116] Section 58 of the PGA provides that where an engineer has reasonable and probable grounds to believe that another engineer is engaged in "the regulated practice in a manner that may pose a risk of significant harm to the environment or to the health and safety of the public or a group of people" then an engineer "must promptly report this to the registrar" and must do so "even if the information on which the belief is based is confidential and its disclosure is prohibited under another Act" (s. 58(3)). However, the PGA was not in

force at the time the Complaint was made. [117] EGBC notes that while the language of s. 58(3) may override the implied undertaking rule on a future case, there is no case law on the point as yet. EGBC made no submissions on whether the Complainant did have a duty to report, either under the EGA or the PGA, nor on whether s. 58(3) potentially overrides the implied undertaking. Rather, EGBC argued that the new statutory provisions in the PGA suggests the legislature is seeking to promote reporting in appropriate circumstances and protect professionals who make reports, which they argue is consistent with the overriding statutory purpose of the PGA to protect the public. Whether the new section in the PGA is a statutory acknowledgment that overrides the implied undertaking will have to be determined by another judge and is not relevant to the matter before me.

6. No Improper Motive [118] Finally, EGBC argues that there is no evidence that the Complainant engaged in the kind of "mischief" that the implied undertaking is, in part, designed to guard against. They argue that there is no evidence that the Complainant was motivated by malice, and there is no suggestion or evidence that EGBC is pursuing any improper motive. This evidence could not come from the Engineers, but rather had to come from either the Complainant or the EGBC, and there is no such evidence. [119] While I make no determination as to the motivation of the Complainant to act as he did, I do note that to waive the implied undertaking in these circumstances would inevitably encourage experts in future litigation to act in a similar manner. This would weaken the strength of the implied undertaking, and may even discourage professionals from accepting expert retainers, which would have a further deleterious impact upon the conduct of litigation. It is not the role of experts to act as private attorneys general in relation to the professional regulation of their specific profession.

7. Effect on Insurance [120] On a final note, the Engineers argue that I should consider the fact that waiving the implied undertaking in this case may impede the settlement of future civil actions and lead to engineers becoming uninsurable or having higher insurance premiums. However, I decline to give this factor any weight. I agree with EGBC that the cost or ability to obtain insurance is not ultimately a relevant consideration in the balancing of competing interests. VIII. CONCLUSION [121] Accordingly, the relief sought by EGBC is denied. I find that the public interest in EGBC's investigation of the Engineers does not outweigh the public interest in upholding the implied undertaking rule. I decline to vary or waive the implied undertaking in this case to allow EGBC to make use of the Contested Materials. [122] Notwithstanding the result, EGBC is to be commended for proceeding with this petition once it realized that the Contested Materials were subject to an implied undertaking of confidentiality. They proceeded in a prudent manner, and are an example for all professional regulatory bodies facing such a dilemma. [123] EGBC did not seek costs and takes the position no costs should be awarded against it. The Engineers take the position that they should be able to make further submissions on costs once these Reasons for Judgment are issued. Accordingly, if any or all of the

Engineers wish to make further submissions on costs, they are to provide written submissions of no more than five pages, double spaced, within 35 days of these reasons, and EGBC is to respond in kind within 21 days thereafter. Should counsel also agree they need to set down a hearing on the issue of costs, they are to contact scheduling to advise of that fact and to schedule a hearing as required. [124] Finally, I wish to thank counsel for their thorough written and oral submissions and their professionalism and courtesy to each other and this Court. "Blake J."