Are submissions, evidence and statements made in a regulatory
proceeding subject to the same protection of absolute privilege
that applies in a court? Not always; it depends on the
In Wilson v Williams, 2013 BCCA 471, the court held that
absolute privilege did not apply to statements made in letters
submitted by persons who had registered as interveners in a review
conducted by the British Columbia
Utilities Commission under section 71 of its enabling statute. The
Commission conducted a review of an energy supply contract. The
trial judge had held that the
Commission's review was an occasion of absolute privilege but
held that the letters fell outside the scope of that privilege. The
Court of Appeal dismissed the appeal, finding that a section 71
review was not an occasion of absolute privilege. The court
considered in detail the framework to be applied in determining
whether the proceedings of an administrative tribunal will be an
occasion of absolute privilege. The factors to be considered are:
(1) under what authority does the tribunal act (is it a body
"recognized by law"); (2) the nature of the question into
which it has a duty to inquire (is the subject matter similar to
what comes before the courts); (3) the procedure adopted by it in
carrying out the inquiry (does it operate in a manner similar to
the courts); and (4) the consequences of the conclusions reached by
the tribunal as a result of the inquiry (does it make binding
determinations with respect to the rights of a party or
The Court of Appeal held that, while a section 71 review has
some characteristics similar to that of a court, its process lies
closer to the administrative end of the spectrum because, in such a
review, the Commission weighs public interest considerations and
does not determine legal rights or impose sanctions.
The Court of Appeal stated that it should not be taken as
deciding whether absolute privilege would apply to other types of
proceeding before the Commission. Whether absolute privilege will
be found to apply to other proceedings before the Commission or to
proceedings before other tribunals will need to be determined on a
case-by-case basis using the framework outlined above.
The decision has potentially significant implications for
parties and their counsel who participate in regulatory proceedings
in determining how they conduct themselves and what they say.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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