Canada: Unusable Discovery: BC Court Of Appeal Upholds Implied Undertaking In Engineering Complain
Litigation and Dispute Resolution Bulletin

A recent decision from the BC Court of Appeal in Association of Professional Engineers and Geoscientists of the Province of British Columbia v. Engineer X, 2023 BCCA 211 upheld a BC Supreme Court decision that refused to grant the Association of Professional Engineers and Geoscientists of BC ("EGBC") leave to use pre-trial discovery evidence, gathered as part of a civil action, to investigate a complaint against three of its members. EGBC is the regulatory body responsible for the regulation of the engineering and geoscience professions in BC.

What Happened?

In February 2016, a man in his early twenties fell from an exterior fire escape, resulting in catastrophic injuries. He commenced a civil action in December 2016 alleging that his fall was due to the state of disrepair of the fire escape and named an engineering company, among others, as a defendant.

The civil action was settled before trial. However, two days later, a complaint was sent via letter to EGBC by an expert that had been retained in the civil action. In his letter, the complainant raised concerns about the professional conduct of engineers that performed work relating to the fire escape. The complainant enclosed documents with his letter that he received in his role as an expert in the civil action.

Upon learning of the source of the complainant's information, EGBC took no further investigative steps and brought a petition in the BC Supreme Court seeking leave to make use of the documents for the purpose of investigating and potentially instituting disciplinary proceedings against the engineers.

At the core of the petition was the implied undertaking to the court, which prohibits the use of pre-trial discovery evidence other than in the proceeding in which it is disclosed (i.e., the civil action in this case). Essentially, the question before the court was whether there existed a public interest of greater weight than the values that the implied undertaking is designed to protect, namely the protection of privacy and the facilitation of a complete and candid discovery process.

The BC Supreme Court judge hearing the petition found that EGBC had failed to demonstrate that its interest in investigating the engineers was of greater weight than the values that the implied undertaking is designed to protect.

The BC Court of Appeal upheld the BC Supreme Court decision and did not accept that a complaint to EGBC and EGBC's statutory obligation to investigate in and of themselves were sufficient to establish a strong public interest in every case finding:

The Court of Appeal additionally noted that to allow EGBC to make use of the documents would be to implicitly condone the breach of the implied undertaking carried out by the complainant, which weighed against a decision in EGBC's favour.

The Bottom Line

In short, the BC Court of Appeal endorsed the importance of the implied undertaking and the values that it is meant to protect. A bare complaint and a professional regulator's statutory mandate do not give rise to a public interest in investigation that outweighs the public interest in maintaining the integrity of the discovery process through the implied undertaking. A fact-specific approach is meant to be used to balance the public interest in having a complaint investigated against the public interest in upholding the values the implied undertaking is designed to protect.

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