Evidence - Statutory Privilege. Yan v. Hutchinson
In Yan v. Hutchinson (Ont CA, 2023) the Court of Appeal considered the record evidence 'privilege' provisions of RHPA s.36(3):
 Third, s. 36(3) of the RHPA provides that any record of a proceeding under the Act, including reports, documents or things prepared for, or a statement given at such a proceeding, along with orders or decisions made in such a proceeding are inadmissible in a civil proceeding. This court confirmed that “[t]he purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings … fearing that a document prepared for the College proceedings can be used in a civil action”: F. (M.) v. S. (N.) (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 29, leave to appeal refused,  S.C.C.A. No. 531; Task Specific Rehabilitation Inc. v. Steinecke (2004), 2004 CanLII 4853 (ON CA), 244 D.L.R. (4th) 414 (Ont. C.A.), at para. 22. See also Deep v. CoIIege of Physicians and Surgeons, 2010 ONSC 5248, at para. 50, aff’d 2011 ONCA 196, at para. 3, leave to appeal refused,  S.C.C.A. No. 152. . Canada (Transportation Safety Board) v. Carroll‑Byrne
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
Here the court engages in an interesting, though case-specific, discussion of statutory privilege:
 The statutory privilege in this case, like with all privileges, “block[s] the flow of potentially relevant and even highly reliable and important information into the truth‑finding mechanism of the trial” (S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 14:1). A statutory privilege thus can exclude relevant evidence, preferring other values or interests designated by the legislature as superior. The author Fournier has observed that [translation] “these values or interests protected by privileges are generally external to the objectives of the judicial system . . . . [A] privilege under the law of evidence represents a limit on the search for truth by courts or parties” (pp. 471 and 474). In the case of the privilege over the CVR, s. 28 of the Act recognizes that the Parliamentary goals of safeguarding pilot privacy and advancing transportation safety can justify, in some circumstances, the non‑disclosure of the on‑board recording notwithstanding its potential relevance to the search for truth at trial. The balancing model used by Parliament in s. 28(6)(c) directs that non-disclosure applies by default; it falls to the party seeking production to explain why the privilege should not apply, as an exception to the default rule (see, e.g., R. v. Gruenke, 1991 CanLII 40 (SCC),  3 S.C.R. 263, at p. 286). To that extent, Parliament has indicated a preference for non‑disclosure insofar as the CVR is presumptively privileged. That presumption can, however, be rebutted by the party seeking disclosure. The test for production under s. 28(6)(c) invites the court or coroner to undertake a discretionary balancing of the interests at stake, in a manner similar to the test used for case‑by‑case privileges (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52,  2 S.C.R. 521, at para. 32; R. v. National Post, 2010 SCC 16,  1 S.C.R. 477, at paras. 53 and 58). Unlike some other statutory privileges, the privilege in s. 28(6)(c) is thus a discretionary one rather than an absolute privilege, with or without exceptions (see, e.g., Babcock v. Canada (Attorney General), 2002 SCC 57,  3 S.C.R. 3, at paras. 17 and 23).. K.K. v. M.M.
 As a point of comparison, it is useful to refer to the statutory privilege bearing on journalistic sources set out in s. 39.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), which is similar in substance to s. 28 of the Act. Before the enactment of s. 39.1 of the CEA, the confidentiality of journalistic sources was protected on a case‑by‑case basis: it was a journalist’s burden to show that the disclosure of information might reveal the identity of a source (National Post, at paras. 50‑69; Globe and Mail v. Canada (Attorney General), 2010 SCC 41,  2 S.C.R. 592, at para. 22). The legislative scheme in s. 39.1 enhanced protection for journalistic sources by shifting the burden of proof: once the court is satisfied that the definitions of “journalist” and “journalistic source” are met, non‑disclosure is the starting point. It is up to the party seeking to obtain the information to rebut this presumption by demonstrating that, following a balancing exercise, the public interest in the administration of justice outweighs the public interest in protecting the source (see CEA, s. 39.1(7); Denis v. Côté, 2019 SCC 44,  3 S.C.R. 482, at paras. 33‑34; Fournier, at p. 490). Section 28 of the Act invites a comparable analysis here. As noted in the Dubin Report, prior to the enactment of the Act, a privilege over CVRs would have been asserted either under Crown privilege or on a case‑by‑case basis (pp. 231‑32). In either situation, the burden was on the Crown or the party claiming privilege. Like s. 39.1 of the CEA, s. 28(6) reverses the presumption: the burden of proof falls to the party seeking disclosure since, under the Act, the privilege presumptively applies until the party seeking disclosure has shown that the public interest in protecting the CVR from disclosure has been displaced by the public interest in the administration of justice. In this sense, disclosure of a recording is the exception to the rule.
In K.K. v. M.M. (Ont CA, 2021) the Court of Appeal considered an evidence excluding provision of the Regulated Health Professions Act:
(3) Does s. 36(3) of the RHPA prohibit the admission of the CPSO materials?
 Section 36(3) of the RHPA provides the following:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. As the trial judge correctly stated, these words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC),  1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,  2 S.C.R. 559, at para. 26.
 On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.
 That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused,  S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused,  S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 2004 CanLII 32184 (ON SC), 71 O.R. (3d) 44 (S.C.), at para. 29.
 As well, Dr. Goldstein’s undertakings, while they may have been made in response to a decision or order covered by s. 36(3), are also not themselves either a decision or order captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself, not by the board, and presumably were also generated after the board had completed its process and released its decision. The rationale that applies to keeping the other items listed in s. 36(3) confidential does not apply to them. Public undertakings are not meant to be confidential, they provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of s. 36(3), discussed below. We therefore agree with the trial judge that the undertakings themselves were admissible.
 However, we respectfully disagree with the trial judge’s conclusion that all proceedings involving the best interests of the child are not civil proceedings and entirely evade the reach of s. 36(3) of the RHPA. In our view, an exemption for all family law cases goes too far.
 First, private family law disputes, while distinct from other civil litigation in many respects, are “civil” proceedings in the ordinary sense of the word: they concern private relations between members of the community in contrast to criminal or child protection proceedings, which both involve state action. If the legislature had intended to exempt family law litigation from the reach of s. 36(3), it would have said so.
 As this court explained in Sutherland, at para. 29,
The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. The “broad objective” of the provision “is to keep College proceedings and civil proceedings separate”: Sutherland, at para. 31; see also Lipsitz, at paras. 101-3.
 A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3). This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.
 Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”
 The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations.
 However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a report, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re), 2001 SCC 35,  2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, at para. 28.