Harassment and the Privacy Commissioner

The College of Physicians and Surgeons recently refused to disclose contact information to an applicant, among other things.

The case involved a physician (applicant) who resigned from the College. The details are not set out, but the College had resolved to erase his name from the temporary register based on misrepresentations he made in his application for registration. He then resigned, and his resignation was accepted.

The applicant had filed numerous FOI requests with the College. He sued it unsuccessfully for defamation; made a complaint to the Ombudsman which was closed; and filed a complaint to the Human Rights Commission which was dismissed.

In responding to the FOI request under review, the College had refused to disclose contact information of third parties, relying upon S.22(2)(e) of FOIPOP. It was concerned that these third parties would be harassed by the former registrant and that this would constitute "harm" within the meaning of the section.

The Privacy Commissioner did not accept this argument, concluding that exposing these individuals to harm did not meet the test of "serious mental distress or anguish by harassment." Individuals receiving communications from the former registrant may be annoyed or frustrated by them, but this did not meet the test or "harm".

College of Physicians & Surgeons of British Columbia

Order F-11-10, March 31, 2011.

Privacy Commissioner Refuses to Hear a Case Against the Law Society of B.C.

The Law Society of B.C. (LSBC) was involved in civil litigation by a non practicing member who had launched a human rights complaint against it. The LSBC retained counsel to defend it. The member applied for correspondence between the LSBC counsel and third parties, some of which were disclosed. The LSBC took the position that the balance of the requested records were subject to solicitor client privilege pursuant to S.14 of FOIPOP and asked the Commissioner not to hold a hearing because it was plain and obvious that the privilege applied. The Commissioner agreed and exercised his discretion not to hold a hearing.

The decision contains a very good summary of the principles of litigation and solicitor-client privilege quoting from a BCSC decision called B. v. Canada [1995] 5 WWR 374.

Decision F11-01

LAW SOCIETY OF BRITISH COLUMBIA,

March 15, 2011.

BCCA Considers Non-Cooperative Accountant

The Institute of Chartered Accountants of B.C. was investigating an accountant. It made arrangements several times to attend his office to review files. The registrant was completely uncooperative. Ultimately he was disciplined for failing to cooperate in the investigation and he signed an undertaking in which he agreed to provide the requested files. He failed to comply with this undertaking and was disciplined for failing to do so.

This time a hearing took place at which the registrant represented himself. He was advised several times to seek legal counsel. At the last minute, the registrant sought an adjournment to retain counsel. This request was denied. During the hearing, the discipline committee requested its own counsel to assist the registrant to present his defense. The registrant's license to practice was cancelled.

The BCCA decided that the Discipline Committee did not breach the duty of procedural fairness to the registrant when it refused his adjournment request and noted that this kind of tribunal has the right to govern its own proceedings.

The case contains a useful summary and analysis of the legal principles that apply to this situation. It applied the correctness standard of review to the question of whether there had been a breach of the duty of fairness.

MACDONALD V. INSTITUTE OF CHARTERED ACCOUNTANTS OF B.C.

2010 BCCA 492