Regulators’ Confidentiality Protections

Most regulators must maintain confidentiality with respect to the information they hold. Many regulators also have statutory protections preventing their representatives from being compelled to testify in other proceedings and preventing regulatory information from being disclosed in other legal proceedings. In Dunbar v The Law Society of British Columbia, 2021 BCSC 8 (CanLII), http://canlii.ca/t/jcf3k, a court reinforced the strength of those provisions.

In Dunbar the petitioner (who was imprisoned for a crime) wanted to use information from the regulator to support efforts to set aside their conviction. The regulator had investigated the petitioner’s lawyers for incompetence concerns. The case is complicated by the fact that in addition to the statutory protections, the information sought was also protected by legal privilege. In addition, counsel to the parties and the imprisoned individual already had been given access to the documents under strict limitations. In terms of the statutory protection against representatives of the regulator being compelled to disclose information or participate in other proceedings, the regulator conceded there might be rare exceptions, such as where an innocent person’s freedom was at stake. In reviewing the documents the Court found it unlikely that the documents were relevant to this exception. However, the Court said that even if the documents were relevant,

… I would have found that the privacy interests the Law Society seeks to maintain must be preserved. The relevance of the documents for Mr. Dunbar’s intended purposes is, at best, marginal. It cannot compete with the interests of the Law Society, which are advanced in the public interest to foster candour in Law Society investigations, and to protect privacy interests.

Thus the Court maintained the confidentiality of the documents.

Interestingly, the Court had to refer to the content of the documents in order to provide meaningful reasons. However, those references to the content of the documents were redacted from the public version of the reasons for decision.

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