Underlying claim says regulator improperly interfered with physicians’ medical care
In the College of Physicians and Surgeons of British Columbia’s favour, the British Columbia Court of Appeal saw error in a finding that ss. 26.2 and 53 of BC’s Health Professions Act, 1996 (HPA) denied access to the court, in breach of s. 96 of the Constitution Act, 1867.
In College of Physicians and Surgeons of British Columbia v. Madryga, 2026 BCCA 100, the respondent experienced chronic, debilitating, and ongoing pain due to a 1997 workplace injury and an unsuccessful surgical attempt to address it.
The respondent’s treating physician prescribed high doses of opiate pain medications to allow him to maintain his daily living activities. After the first physician ended his relationship with the respondent, a second physician continued the high dosage until his retirement.
In a civil claim, the respondent alleged that the College improperly interfered with the medical care of his treating physicians.
On Apr. 17, 2025, a chambers judge of the Supreme Court of British Columbia declared that ss. 26.2 and 53 of the HPA – which prohibited the disclosure of documents created or produced in connection with the College’s quality assurance programs – were unconstitutional for violating s. 96 of the Constitution Act.
The judge determined that ss. 26.2 and 53 offered no avenue for a court review to determine whether to order the production of documents or information – to which the HPA provisions referred – in the context of litigation.
The judge issued an order requiring the College to produce certain documents and information. The College appealed the declaration and the production order. The appeal asserted that the judge erred in:
- finding ss. 26.2 and 53 of the HPA in breach of s. 96 of the Constitution Act
- misapplying the “core jurisdiction” test relevant to s. 96
- not ordering the College to better describe the privileged documents in its list of documents
- not viewing the documents to determine the validity of the College’s privilege claims
Currently, no physician was treating the respondent for his pain. Under his agreement with the College, he continued to receive his medications without needing a prescription.
Judge’s order set aside
The Court of Appeal for British Columbia allowed the appeal.
First, the appeal court ruled that the chambers judge’s interpretation of ss. 26.2 and 53 of the HPA as effectively barring the court from examining the records erred in law and undermined her declaration of invalidity relating to the HPA provisions.
The appeal court saw an error in the judge’s interpretation of the absence of language allowing the court to assess the records as prohibiting any form of review.
Instead, the appeal court interpreted the lack of such language – alongside the express restrictions on the admissibility and compellability of records and information in ss. 26.2 and 53, plus the HPA’s object and purpose – as not interfering with the court’s power under r. 7-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, to review the documents to determine whether the College properly asserted privilege.
The appeal court explained that its interpretation aligned with Babcock v. Canada (Attorney General), 2002 SCC 57, where the Supreme Court of Canada viewed s. 39 of the Canada Evidence Act, 1985, as not excluding a judicial review of a determination of the clerk of the Privy Council.
Next, the appeal court held that the HPA did not override:
- r. 7-1(20) of the Supreme Court Civil Rules, which enabled a judge to review the documents to assess whether to order their production in the context of litigation and whether the College had a valid objection to such production
- the judge’s ability to make an order under r. 7-1(14)(b)(ii) to ask the College to submit a further and better description of the allegedly privileged documents under r. 7-1(7)
The appeal court added that the judge erred in applying the “core jurisdiction” test relevant to s. 96 of the Constitution Act.
The appeal court acknowledged that ss. 26.2 and 53 restricted the admissibility and compellability of evidence. However, the appeal court concluded that the HPA provisions did not bar access to the courts in breach of s. 96 of the Constitution Act.
