Commercial Litigation and Dispute Resolution Blog

Are submissions, evidence and statements made in a regulatory proceeding subject to the same protection of absolute privilege that applies in a court? Not always; it depends on the proceeding.

In Wilson v Williams, 2013 BCCA 471, the court held that absolute privilege did not apply to statements made in letters submitted by persons who had registered as interveners in a review conducted by the British Columbia Utilities Commission under section 71 of its enabling statute. The Commission conducted a review of an energy supply contract. The trial judge had held that the Commission’s review was an occasion of absolute privilege but held that the letters fell outside the scope of that privilege. The Court of Appeal dismissed the appeal, finding that a section 71 review was not an occasion of absolute privilege. The court considered in detail the framework to be applied in determining whether the proceedings of an administrative tribunal will be an occasion of absolute privilege. The factors to be considered are: (1) under what authority does the tribunal act (is it a body “recognized by law”); (2) the nature of the question into which it has a duty to inquire (is the subject matter similar to what comes before the courts); (3) the procedure adopted by it in carrying out the inquiry (does it operate in a manner similar to the courts); and (4) the consequences of the conclusions reached by the tribunal as a result of the inquiry (does it make binding determinations with respect to the rights of a party or parties).

The Court of Appeal held that, while a section 71 review has some characteristics similar to that of a court, its process lies closer to the administrative end of the spectrum because, in such a review, the Commission weighs public interest considerations and does not determine legal rights or impose sanctions.

The Court of Appeal stated that it should not be taken as deciding whether absolute privilege would apply to other types of proceeding before the Commission. Whether absolute privilege will be found to apply to other proceedings before the Commission or to proceedings before other tribunals will need to be determined on a case-by-case basis using the framework outlined above.

The decision has potentially significant implications for parties and their counsel who participate in regulatory proceedings in determining how they conduct themselves and what they say.