The Supreme Court of British Columbia has refused to allow a doctor to enter evidence of statements made during a hospital’s internal harassment complaint process, in support of his Court action alleging defamation and interference with contractual relations.
The plaintiff was a doctor who sued a number of physicians and administrators of a hospital for defamation and interference with his contractual rights in relation to his ability to practice at the hospital. The statements which formed the basis of the doctor’s action were made during the hospital’s internal investigation of workplace harassment allegations against the doctor. The defendants objected to the admissibility of this evidence, on the basis that the statements were made during a quasi-judicial process that gave rise to an absolute privilege.
Two recent decisions of the British Columbia Court of Appeal have confirmed that communications made incidentally and proximately to quasi-judicial proceedings are protected by absolute privilege. The Court found that the statutory regime under Hospital Act, which allows a hospital board to cancel a doctor’s hospital privileges, is a quasi-judicial process. In the case at hand, the investigation of the harassment allegations was incidental and sufficiently proximate to the hospital’s decision to cancel the plaintiff’s hospital privileges. Accordingly, statements made during the investigation were protected by absolute privilege.
Having determined that the complaints were protected by absolute privilege, the Court considered the effect of the privilege on the litigation. It reiterated that the privilege afforded to judicial and quasi-judicial proceedings is essential to ensure that all persons participating in those proceedings enjoy freedom of speech in the discharge of their public duties and in pursuing their rights, without fear of consequences. It follows from this underlying policy that the privilege applies to exclude evidence, not only in proceedings based directly on the privileged statements (such as defamation), but in any action where the statements were used to the detriment of a complainant/defendant.
The Court commented that it would be small comfort to potential complainants in the hospital’s human rights process to know that, although their statements in that context cannot themselves form the basis of an action, the statements could be used to their detriment in other legal proceedings.