Another Broad Interpretation of Investigation Powers

The trend in court decisions to recognize regulators’ broad investigative powers was reinforced in the decision of A Lawyer v The Law Society of British Columbia, 2021 BCSC 914 (CanLII), https://canlii.ca/t/jfx2v. In that case the regulator demanded and obtained access to all of the practitioner’s paper and electronic records including personal phones. The regulator took the position that it had the right to access the entire records of the practitioner as part of the investigation. In dismissing the practitioner’s challenge to the breadth of the investigation, the Court made the following points:

1. Under the wording of the provisions of the enabling statute, the regulator could investigate the entire practice of the practitioner and was not limited to the reasonable and probable grounds of misconduct relied upon to authorize the investigation. The Court noted that this provision was different, in this respect, from that of some other regulators that did confine the scope of the investigation to the reasonable and probable grounds.
2. As a result, the practitioner was not able to challenge the relevance of the information sought. The practitioner could only challenge the regulator accessing information that was personal and irrelevant (e.g., non-practice activities) or that was privileged (e.g., the practitioner’s communications with their own lawyer).
3. The regulator had not yet made any statutory decisions, so their actions were not yet susceptible to judicial review. Only if the regulator decided to take regulatory action (beyond investigation) were their actions subject to judicial review.
4. The regulator had met its duty of procedural fairness by determining that there were reasonable and probable grounds to initiate the investigation, providing notice of the investigation and offering a procedure to request exclusion of information that was personal or privileged. At this point at least, the practitioner was not entitled to disclosure of the basis of the investigation or the content of the reasonable and probable grounds.
5. There was no abuse of process in the regulator initiating a more specific complaints procedure in respect of identified concerns when the broader investigation was stalled due to the legal challenge.
6. The approval of the very broad investigation by the chair of the discipline committee did not amount to an unauthorized sub-delegation to regulatory staff as to the scope of the investigation.
7. By referencing in its description of the legal process that legal advice had been given did not amount to a waiver of solicitor and client privilege such that the practitioner could obtain access to the legal opinion.
8. There was no unreasonable search or seizure contrary to section 8 of the Canadian Charter of Rights and Freedoms. The practitioner had a low expectation of privacy in his practice records and the request for access to the information was reasonable under the provisions in the legislative scheme. Even access to the personal phones was justified as they contained practice information and the regulator was not seeking access to the non-practice related information on the phones.
9. It was also reasonable for the investigators to remind the practitioner of the practitioner’s duty to cooperate with the investigation.

This case buttresses the principle that practitioners can only rarely challenge an investigation of their regulatory body, at least until it is completed.