Regulators must often disclose all relevant information, that is not privileged, in its legal proceedings such as discipline hearings. However, the party receiving the disclosure has a corresponding duty to only use that information for the purpose of that litigation. That confidentiality typically ends, however, if the disclosure is entered as evidence as part of the public hearing process. This exception can lead to disputes as to whether tendering a document, or other information, as evidence in the proceeding is done to genuinely advance the proceeding or is intended to embarrass the individual to whom it relates.
That issue arose in Heller v Law Society of British Columbia, 2025 BCSC 1741 (CanLII). The context was a very public dispute between a lawyer and his regulator. The lawyer made a motion at the annual meeting of members requesting changes to the regulator’s CPD curriculum on the Canadian history of interactions with Indigenous peoples. The motion was voted down and the lawyer sued the regulator for defamation related to the regulator’s response to the issue. The regulator produced on discovery its internal documents related to the matter. Some of those documents included information about the personal experiences of existing staff and a former employee of the regulator “with ‘colonialism, colonial harm, and the effect of Residential Schools’ on them and their families.”
On a motion related to the pleadings, the lawyer filed an affidavit containing some of the discovery documents including those describing the former employee’s experiences. The regulator claimed that the inclusion of the documents in the affidavit was an attempt to circumvent the implied undertaking rule and unnecessarily breached the dignity and privacy of the former employee. The regulator brought an urgent motion to strike the affidavit or, in the alternative, to seal it from public view.
The Court said that it was too early to ascertain whether the affidavit was irrelevant to the main motion or an attempt to circumvent the implied undertaking rule. However, the Court concluded that the important principle of open court processes was outweighed, at least for the short term, by the former employee’s privacy rights:
I reject the plaintiff’s suggestion that personal experiences and information pertaining to these matters do not strike at the biographical core of an individual’s identity. I am also conscious that the Court carefully but regularly exercises discretion to preserve the confidentiality of information about alleged abuse or mistreatment and its impacts in many other contexts, in order to preserve the societal interest in individual dignity. I have reviewed the materials appended to Affidavit #2 and I am satisfied that court openness poses a serious risk to the important public interest in privacy for the protection of individual dignity.
The Court ordered that the affidavit be sealed from public access until the main motion can be heard in a few weeks time (or a different court order is made). At that time the circumvention concern will likely be considered on its merits.
This decision illustrates the value of regulators being diligent to protect sensitive information it provides pursuant to its disclosure obligations.