Executive Summary: Key legal and evidentiary issues

• Constitutionality of ss. 26.2 and 53 of the Health Professions Act (HPA) was challenged for allegedly barring judicial review of privileged documents in civil litigation.

• Mr. Madryga alleges the College's Prescription Review Program improperly pressured his physicians to reduce his high-dose opiate pain medications, constituting "regulatory harassment."

• Existing Supreme Court Civil Rules (R. 7-1(7), R. 7-1(14), and R. 7-1(20)) provide avenues for courts to review privilege claims, undermining the basis for declaring the HPA provisions unconstitutional.

• Application of the "core jurisdiction" test under s. 96 of the Constitution Act, 1867 was central, with the Court of Appeal finding that restricting evidence admissibility does not equate to barring court access.

• The College's sealing order application was dismissed because court openness did not pose a serious risk to an important public interest under the Sherman Estate test.

• Dr. M, the affected former registrant whose records were at issue, withdrew his objection and was "absolutely opposed" to a sealing order, weakening the College's case for confidentiality protections.

Background and the parties involved

Rodney Madryga, a British Columbia resident, suffered a workplace injury in 1997 followed by a failed surgical attempt to repair it. He has since endured chronic, debilitating, and ongoing pain managed primarily through high doses of opiate pain medications (OPM). His treating physician, Dr. L, initially prescribed the high-dose OPM to allow him to continue with his daily living activities, and when Dr. L ended his relationship with Mr. Madryga, Dr. M assumed his care. Dr. M continued Mr. Madryga's high doses of OPM until he retired. Mr. Madryga is not currently being treated for his pain by a physician; instead, under an agreement between Mr. Madryga and the College of Physicians and Surgeons of British Columbia (the "College"), he continues to receive his OPM without the need for a prescription.

The College's regulatory role and the Prescription Review Program

The College regulates the practice of medicine in British Columbia under the Health Professions Act (HPA). Pursuant to s. 16 of the HPA, the College is under a statutory duty to serve and protect the public, and to exercise its powers and discharge its responsibilities in the public interest. Among its duties and objects is establishing and maintaining a continuing competency program to promote high practice standards among registrants. The HPA empowers the College to make bylaws to establish standards, limits, or conditions for the practice of medicine, a quality assurance program (QAP), and various committees including a quality assurance committee (QAC). One such QAP is the Prescription Review Program (PRP), administered by the Prescription Review Panel, a panel of the College's QAC. According to the affidavit from David Unger, the Deputy Registrar of the College, the PRP assists registrants to safely prescribe medication that carries the risk of patient harm, reviewing registrants' use of, and rationale for, prescribing opioids, sedatives, and other potentially addictive medications. Mr. Unger states that the PRP's main objective is patient safety. The PRP cannot and does not tell registrants how to manage individual patients, does not intervene in individual patient care, and does not discipline registrants for what they prescribe. Instead, it offers educational and remedial activities guided by evidence-based best practices.

Mr. Madryga's civil claim against the College

Mr. Madryga filed his notice of civil claim on February 13, 2023, alleging that since 2015, the College had, through its PRP, pressured his treating physicians to reduce his use of high-dose OPM to a level the PRP considers appropriate. He characterized the interactions between the PRP and his physicians as "regulatory harassment" by the College and sought damages under s. 24(1) of the Canadian Charter of Rights and Freedoms for the College's actions that he says breached his s. 7 rights. Both Dr. L and Dr. M assisted Mr. Madryga's counsel — Dr. L by producing his medical notes and Dr. M by filing an affidavit in the proceeding. Both described feeling pressured by the College to reduce Mr. Madryga's OPM.

The document disclosure dispute

During the documentary disclosure process pursuant to R. 7-1 of the Supreme Court Civil Rules, the College asserted in its list of documents that certain documents relating to the specific administration of the PRP in respect of Mr. Madryga's physicians could not be disclosed due to the confidentiality requirements set out in ss. 26.2 and 53 of the HPA. Section 26.2 restricts the disclosure of records and self-assessments prepared in the context of a QAP, while s. 53 further restricts disclosure of confidential information obtained under the HPA and limits the compellability of such records in court proceedings. The College's list of documents did not itemize each document but simply set out broad categories of documents. Dissatisfied with the College's listing, Mr. Madryga applied for disclosure of the documents over which the College claimed privilege. In the alternative, he sought an order under R. 7-1(20) requiring the College to produce the documents for inspection by the court to determine the validity of the College's objection to production. In the further alternative, he sought a declaration that ss. 26.2 and 53 were invalid or did not apply to disclosure in his action because those provisions prevented him from establishing a violation of his rights under the Charter, thereby interfering with the essential jurisdiction of the courts under s. 96 of the Constitution Act, 1867.

The lower court's declaration of unconstitutionality

In reasons cited at Madryga v. College of Physicians and Surgeons of British Columbia, 2025 BCSC 728, Justice Baker declared ss. 26.2 and 53 of the HPA unconstitutional because they impinged on the core jurisdiction of a provincial superior court, contrary to s. 96 of the Constitution Act, 1867. The chambers judge held that these provisions were "of no force and effect to the extent that they provide no avenue for review by a court to determine whether documents or information referred to in such sections should be produced in the context of litigation." Her decision rested on two conclusions: first, that the HPA provisions established a complete prohibition on the production of the otherwise relevant documents sought by Mr. Madryga; and second, that as a result, there was no basis for the court to examine the documents to determine if disclosure should be ordered "in accordance with the HPA."

The sealing order application (2025 BCCA 250)

Before the main appeal was heard, the College applied for an order sealing certain material that it proposed to include in the appeal record and appeal book, specifically portions of its Amended Response to civil claim and a letter from Dr. M's counsel objecting to material included in the Amended Response. The College argued that its Amended Response may have contravened the confidentiality provisions of the HPA and that court openness would pose a serious risk to an important public interest. Madam Justice Horsman, applying the test from Sherman Estate v. Donovan, 2021 SCC 25, acknowledged that there is an important public interest in compliance with statutory confidentiality provisions such as those contained in the HPA. However, she found that the College had not demonstrated that court openness posed a serious risk to that interest in the unique circumstances of this case. Notably, Dr. M had withdrawn his objection to the contents of the Amended Response and was "absolutely opposed" to a sealing order. Much of the relevant narrative concerning the interaction between Dr. M and the Program would remain unsealed regardless of the decision. The College's application for a sealing order was dismissed.

The appeal decision (2026 BCCA 100)

Both the College and the Attorney General of British Columbia appealed Justice Baker's declaration. Writing for a unanimous three-judge panel, Justice MacNaughton found that the chambers judge's interpretation of the HPA provisions as, in effect, barring the court from examining the records constituted an error in law, undermining her declaration of invalidity. The Court of Appeal held that the chambers judge fell into error by interpreting the absence of language in the HPA permitting the court to assess the records as prohibiting any form of review. The existing Supreme Court Civil Rules provided adequate mechanisms: under R. 7-1(14)(b)(ii), the College may be ordered to provide a further and better description of the documents over which privilege was asserted, as required by R. 7-1(7), and under R. 7-1(20), the court may review the documents for the purpose of determining the validity of the College's objection to producing them. The chambers judge did not consider these avenues in concluding that the provisions were unconstitutional. On the constitutional question, the Court of Appeal also found that the chambers judge erred in her application of the "core jurisdiction" test relevant to s. 96 of the Constitution Act, 1867. Citing Babcock v. Canada (Attorney General), 2002 SCC 57, Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the Court emphasized that legislation limiting the admissibility of evidence is not an impermissible invasion by a legislature on the court's core jurisdiction. While the provisions may limit a court's ability to adjudicate Mr. Madryga's claim, they do not oust it.

The ruling and outcome

The Court of Appeal unanimously allowed the appeal and set aside the order of the chambers judge, with Justices Fleming and Riley concurring in Justice MacNaughton's reasons. The declaration that ss. 26.2 and 53 of the HPA were unconstitutional was overturned. No monetary award was made, as the appeal addressed a procedural and constitutional question rather than the merits of Mr. Madryga's underlying claim, and no exact amount can be determined from the decisions. The successful parties on appeal were the College of Physicians and Surgeons of British Columbia and the Attorney General of British Columbia.