Many regulators have provisions that prevent at least some of their information, documents, or decisions from being used in civil proceedings. The purpose of these provisions is to facilitate cooperation with the regulator and to enable the regulator to take regulatory action without concern about collateral civil consequences. Courts have generally supported the intent of such provisions.
However, an unusual implication of those provisions arose in British Columbia. A patient alleged that the regulator’s quality assurance program limited his access to opiate pain medication by encouraging physicians to minimize their use of drugs. Apparently, the patient’s physicians were supportive of this patient continuing to receive high doses of opioids, but stopped prescribing them to avoid difficulties with their regulator. The patient sued the regulator and sought discovery of the quality assurance program’s communications with his physicians to support his claim. The regulator claimed privilege over that information based on a statutory provision making the communications inadmissible in civil proceedings.
A lower court found that the provision was invalid as it effectively prevented the courts from adjudicating the dispute. The regulator appealed and BC’s highest court reversed the lower court decision. It concluded that the provision did not prevent the court from receiving a detailed description of the communications to enable it to assess whether the privilege applied in the circumstances. The Court also said that in exceptional circumstances it could actually review the documents at issue to evaluate whether they should be disclosed to the patient. See: College of Physicians and Surgeons of British Columbia v. Madryga, 2026 BCCA 100 (CanLII).
Because of the preliminary nature of the decision, it is not yet clear how much scope will be given to the statutory provision. In particular, will the regulator be able to rely on the provision to prevent a patient from challenging components of its quality assurance program? Also yet to be determined is whether a patient can sue a regulator for encouraging best practices that may impact the patient’s access to drugs. Despite these unanswered questions, the validity of the provision is no longer in dispute.
