Kalvan Manderscheid Appellant (Plaintiff) v. Humboldt Smiles Dental Studios, 2021 SKCA 42

Court of Appeal for Saskatchewan Docket: CACV3514 Citation: Manderscheid v Humboldt Smiles Dental Studios Inc. , 2021 SKCA 42 Date: 2021-03-19 Between: Kalvan Manderscheid Appellant (Plaintiff) And Humboldt Smiles Dental Studios Inc., Dr. Michele Ackerman, John Doe and Jane Doe Respondents (Defendants) Before: Ottenbreit, Schwann and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Schwann On appeal from: 2019 SKQB 284 , Regina Appeal heard: November 20, 2020 Counsel: Kenneth Ready, Q.C., for the Appellant Jodi Wildeman, Q.C., and Allison Graham for the Respondent Tholl J.A. I. Introduction [ 1 ] Kalvan Manderscheid experienced medical difficulties after dental treatment, which resulted in him filing a complaint with the College of Dental Surgeons of Saskatchewan [College] against Dr. Michele Ackerman and commencing an action in negligence against her, Humboldt Smiles Dental Studios Inc. and two unnamed defendants.

The complaint was resolved as between Dr. Ackerman and the College by the two of them entering into a Consent to Conditions agreement [Agreement]. The terms of the Agreement are unknown because the College and Dr. Ackerman have both refused to disclose it, or its contents, to Mr. Manderscheid. [ 2 ] Mr. Manderscheid applied to the Court of Queen’s Bench for an order requiring Dr. Ackerman to produce the Agreement as a document within the context of the litigation and to be subject to questioning on it. His application was dismissed. On appeal, Mr.

Manderscheid asserts the Chambers judge erred by failing to determine that the College did not have the authority to enter into a confidential agreement, by finding the Agreement was an agreement between a disciplinary committee and the subject of disciplinary proceedings, and by deciding that the Agreement was covered by settlement privilege. The respondents dispute all of these assertions. [ 3 ] For the reasons that follow, the appeal must be dismissed. II. Background [ 4 ] Dr. Ackerman is a dentist registered as a member of the College. In May of 2016, Mr.

Manderscheid attended her dental clinic and had two teeth extracted. He claims he subsequently experienced medical problems caused by the alleged negligence of Dr. Ackerman and two unnamed employees of her dental clinic. On August 4, 2016, Mr. Manderscheid filed a complaint with the College regarding Dr. Ackerman. The College addressed the complaint through its Professional Conduct Committee [PCC]. [ 5 ] Communication regarding the complaint occurred between the College and Dr. Ackerman and between the College and Mr. Manderscheid. In a letter dated August 5, 2016, from the Registrar of the College to Mr.

Manderscheid, the following was stated: “The PCC recommends that most matters be resolved by s 29(2)(b)(i) [of The Dental Disciplines Act ]. If that is the case, the complainant will be consulted regarding a ‘Consent to Conditions’ agreement for their consent”. [ 6 ] Ultimately, on January 10, 2017, the Registrar of the College sent a letter to Mr.

Manderscheid indicating that the complaint had been addressed: Following investigation by the Professional Conduct Committee (PCC), the matter of professional standards has been addressed by a ‘Consent to Conditions’ agreement pursuant to the Dental Disciplines Act, 1997 Section 29(2)(b)(i), that Dr. Ackerman has agreed to complete.

Having reviewed the evidence available the PCC believes that the conditions in the ‘Consent to Conditions’ agreement address the matter in your complaint. … Enclosed is a copy of the Professional Conduct Committee Report to the Discipline Committee. [ 7 ] The PCC Report to the Discipline Committee, which was referred to in the January 10, 2017, letter, and provided to Mr. Manderscheid, is a different document than the Agreement. It was a report required to be created and provided to a complainant

pursuant to s. 29(2) and s. 29(5) (

b) of The Dental Disciplines Act , SS 1997, c D-4.1 [ Act ]. [ 8 ] Mr. Manderscheid was not directly consulted with regard to the contents of the Agreement and did not consent to it. Dissatisfied with not having received a copy of the Agreement, Mr. Manderscheid telephoned and emailed the College and formally requested a copy. In a letter dated January 27, 2017, the College responded: In our phone call, we indicated that if you had any new information to provide us that the matter would be reviewed.

We have not received such so the Professional Conduct Committee is comfortable that the matter has been resolved by a ‘Consent to Conditions’ agreement between the Professional Conduct Committee and Dr. Ackerman. Because the complaint was resolved by a ‘Consent to Conditions’ agreement the Professional Conduct Committee has determined there is no basis for proceeding as per the Dental Disciplines Act section 29(2) (b)(ii) and the College of Dental Surgeons of Saskatchewan Bylaws 9.4(1)(

a) and 9.7. The Professional Conduct Committee believes that in order to obtain a satisfactory ‘Consent to Conditions’ agreement, the terms of the agreement must be kept confidential. [ 9 ] Responding to a subsequent letter from Mr. Manderscheid’s counsel, the Registrar of the College wrote on November 2, 2018: As indicated to Mr. Manderscheid verbally and in our Complaints Resolution Brochure (on the CDSS [College] website and provided to Mr. Manderscheid) complaints can be resolved by: (

i) Referral to Discipline; (ii) Mutual consent of the complainant and the member; or (iii) No further action required because of: (

a) The facts of the case don’t warrant further action; or (

b) The matter has been resolved by a confidential ‘Consent to Conditions’ agreement between the CDSS Professional Conduct Committee and the respondent. The Professional Conduct Committee resolved this matter by a confidential “Consent to Conditions” agreement referred to above in (iii) (b). That agreement will not be shared with the complainant. [ 10 ] Mr. Manderscheid commenced an action in negligence against Dr. Ackerman, the corporation (Humboldt Smiles Dental Studios Inc.) and two unnamed employees on October 11, 2017. The respondents filed a statement of defence denying the claim in its entirety. Mr.

Manderscheid requested that a copy of the Agreement be listed in the respondents’ affidavit of documents and produced. The respondents refused to produce the document or answer questions in relation to it. III. Chambers decision [ 11 ] Mr. Manderscheid applied in the Court of Queen’s Bench seeking several forms of relief, which can be summarized as a request for an order that required the respondents to disclose the Agreement and for Dr. Ackerman to be subject to questioning on it. He filed an affidavit that set out the above facts with some additional detail. The facts alleged were uncontroverted, although Mr.

Manderscheid also expressed some opinions and conclusions in paragraphs 10, 12, 13 and 14 of his affidavit that were implicitly not accepted by the Chambers judge. [ 12 ] Mr. Manderscheid did not seek to make the College a party to the application. There is no evidence it was served with his application. [ 13 ] In response to the application, the respondents asserted the Agreement should not be produced on the basis of settlement privilege and case-by-case privilege. Dr. Ackerman filed a short affidavit. The key parts of that affidavit are as follows: 4. On November 23, 2016, I received correspondence from Dr.

Drew Krainyk, the Chair of the Professional Conduct Committee of the College. Dr. Krainyk advised that the College had determined the matter could be resolved by my agreeing to sign a ‘Consent to Conditions’ agreement (the “Consent to Conditions Agreement”). 5. My understanding was that the Consent to Conditions Agreement was confidential, and would be kept between myself and the College. 6.

I signed the Consent to Conditions Agreement and it became effective on December 7, 2016. [ 14 ] The Chambers judge set out the uncontroverted facts of the matter and the relevant portions of the Act : Manderscheid v Humboldt Smiles Dental Studios Inc. , 2019 SKQB 284 [ Chambers Decision ] . She determined the Agreement was not a report of a disciplinary committee but was, instead, an agreement between a disciplinary committee and the subject of that discipline. Having so determined, the Chambers judge considered whether settlement privilege attached to the Agreement and prevented its disclosure.

She reviewed the law regarding privileged communications and set out the three requirements for the existence of settlement privilege from Hollinger Inc. (Re) , 2011 ONCA 579 at para 16 , 107 OR (3d) 1 [ Hollinger ] (citing Bryant, Lederman and Fuerst, The Law of Evidence in Canada , 3d ed (Markham, Ont: LexisNexis, 2009) at 1033, s 14.322): (a) “there is a litigious dispute”; (b) “the communication has been made ‘with the express or implied intention it would not be disclosed in a legal proceeding in

the event negotiations failed’”; and (c) “the purpose of the communication is to attempt to effect a settlement”. [ 15 ] The Chambers judge applied each of these three parts of the test to the facts of the matter before her. First, she determined Dr.

Ackerman was engaged in a litigious dispute with the College, relying on the reasoning in Mustard (Next Friend of) v Oldham , 2005 ABQB 193 , 48 Alta LR (4th) 368 [ Mustard ], to find that a disciplinary proceeding is a litigious dispute. [ 16 ] Turning to the second requirement, the Chambers judge observed that the Act does not mention a consent to conditions agreement. She acknowledged Mr. Manderscheid’s submission that the Registrar of the College had told him that he would be consulted and his consent sought, but she determined the College had changed its position.

The Chambers judge found it was uncontested that the Agreement resolved the dispute as between the College and Dr. Ackerman. After noting that the College’s August 5, 2016, letter had suggested the Agreement would be disclosed, the Chambers judge determined she was satisfied that it was intended by Dr. Ackerman and the College that it would be kept confidential. In doing so, she accepted as a fact that Dr. Ackerman understood the Agreement was confidential and “would be kept between myself and the College”. [ 17 ] The Chambers judge found that the third requirement from Hollinger was undisputed.

With all three conditions met, she determined the Agreement was caught by settlement privilege and should not be disclosed to Mr. Manderscheid. Having found that settlement privilege shielded the Agreement from disclosure, the Chambers judge declined to address the case-by-case privilege argument raised by the respondents. Mr.

Manderscheid’s application was dismissed with costs in the cause. [ 18 ] Leave to appeal this interlocutory decision was granted by Leurer J.A. pursuant to s. 8 of The Court of Appeal Act, 2000, SS 2000, c C-42.1 : Manderscheid v Humboldt Smiles Dental Studios Inc. (16 December 2019) Regina, CACV3514 (Sask CA). IV. Issues [ 19 ] The following issues arise in this appeal: (

a) Did the Chambers judge err by failing to determine that the College had acted outside of its authority under the Act ? (

b) Did the Chambers judge err by determining that the Agreement was an agreement between a disciplinary committee and the subject of the discipline? (

c) Did the Chambers judge err by determining that a litigious dispute existed between the College and Dr. Ackerman? (

d) Did the Chambers judge err by determining that the Agreement was intended to remain confidential? V. Analysis A. Standard of review [ 20 ] The standard of review to be applied to the

interpretation of a statute is correctness: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235, and Lorencz v Talukdar , 2020 SKCA 28 at para 51 , 446 DLR (4th) 487. [ 21 ] A determination that privilege exists is a question of mixed fact and law subject to review on the palpable and overriding error standard.

This standard of review was set out by Ottenbreit J.A. in Redhead Equipment v Canada (Attorney General) , 2016 SKCA 115 , 402 DLR (4th) 649 [ Redhead Equipment ], as follows: [21] … the standard of review with respect to determinations of privilege respecting particular documents is palpable and overriding error. … … [24] Because the determinations of the Chambers judge are predominantly factual or involve an

interpretation of the evidence as a whole with regard to a particular document in the context of other documents in issue, I am of the view that the application of the law of solicitor–client privilege to these findings is not a question of law. It is a question of mixed fact and law from which a question of law is not readily extricable regarding each document because there are so many factual variables with respect to each document. Thus, the matter necessarily lies toward the factual end of the mixed fact and law spectrum referred to in Housen .

On this basis, the standard of review on determinations of whether a particular document is privileged on the basis of the applicable law is palpable and overriding error. [ 22 ] While the decision in Redhead Equipment related to solicitor–client privilege, the use of this same standard of review was subsequently endorsed by the majority of this Court in relation to litigation privilege and settlement privilege: Saskatchewan Crop Insurance v Rick Peterson Farms Ltd ., 2019 SKCA 19 at paras 6–11 , [2019] 3 WWR 602. B. Authority under the Act to enter into the Agreement [ 23 ] Mr.

Manderscheid submits that s. 29 of the Act delineates the scope of the College’s authority, through its PCC, to enter into agreements to resolve complaints. He asserts the PCC had no authority to enter into a consent to conditions agreement [CCA] without the complainant’s consent and, therefore, the Agreement was entered into in contravention of the Act . Mr. Manderscheid contends that,

because the College had no authority to enter into the Agreement or to keep it confidential, it must be disclosed. [ 24 ] The respondents submit the College had the authority to enter into a confidential CCA and that the principles related to settlement privilege apply. [ 25 ] The following are the relevant portions of the Act : Professional conduct committee 28

(1) Each association shall establish a professional conduct committee consisting of at least three persons appointed by the council, the majority of whom are to be practising members of that association.

(2) Discipline committee members are not eligible to serve on the professional conduct committee. Investigation 29

(1) Where the professional conduct committee is requested by its council to consider a complaint or is in receipt of a written complaint alleging that a member is guilty of professional misconduct or professional incompetence, the committee shall: (

a) review the complaint; and (

b) investigate the complaint by taking any steps it considers necessary, including summoning before it the member whose conduct is the subject of the complaint or assessing the member’s competence.

(2) On completion of its investigation, the professional conduct committee shall make a written report to the discipline committee recommending: (

a) that the discipline committee hear and determine the formal complaint set out in the written report; or (

b) that no further action be taken with respect to the matter under investigation because: (

i) the matter has been resolved, with the consent of the complainant and the member who is the subject of the investigation; or (ii) in the opinion of the professional conduct committee no further action is warranted on the facts of the case. …

(4) A report signed by a majority of the professional conduct committee is the decision of that committee.

(5) The professional conduct committee shall provide, or cause the registrar to provide, a copy of a written report made pursuant to subsection (2) to: (

a) the council; (

b) the person, if any, who made the complaint; and (

c) the member whose conduct is the subject of the complaint. … Discipline committee 32

(1) Each association shall establish a discipline committee consisting of at least three persons appointed by its council. …

(4) Professional conduct committee members are not eligible to be discipline committee members. [ 26 ] In addition, the College enacted the following bylaws: Complaint 9.4(1) Any complaint received by the College or referred by any of the committees shall be reviewed by the registrar, who shall make such investigations as he or she deems necessary. Following such investigations, the registrar may: (

a) Advise the complainant that there is no basis for proceeding; (

b) With the consent of both parties, refer the complaint to the Mediation Committee for a mediation hearing between the member and the complainant; (

c) Refer the complaint to the Professional Conduct Committee or the Quality Assurance Committee; or (

d) Refer the complaint to council or the Executive Committee with such recommendations as the registrar sees fit.

(2) The registrar shall report to council from time to time as to the complaints received and the disposition of the same, and shall take such other action as council may direct regarding any such complaints.

… Professional Conduct Committee 9.7 Upon receiving a complaint, the Professional Conduct Committee shall follow such procedures and may take any such actions as setout in the Act, including the making of a recommendation that the Discipline Committee hear and determine the formal complaint as setout in the written report of the Professional Conduct Committee. [27] The approach applied to matters of statutory

interpretation is set out in Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 SCR 27 [Rizzo]. It requires a purposive analysis, having regard for the legislative scheme and the intention of the Legislature.Section 2-10(1) of The Legislation Act, SS 2019, c L-10.2, which embodies the purposive approach, requires that the words of

an Act areto be “read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of theAct and the intention of the Legislature”. See also, Farm Credit Canada v Gustafson, 2021 SKCA 38. [28] In applying this analysis to the matter at hand, it is my view that I should be circumspect in my discussion of the

interpretationof the Act because its application is engaged by a very narrow issue and the primary user of the legislation, the College, is not a participantin these proceedings. [29] Neither the Act nor the bylaws speak directly to the ability of the parties to enter into a CCA. Its use is neither specificallypermitted nor prohibited.

Consequently, confidentiality with respect to a CCA is not addressed, and there is no statutory entitlement for acomplainant to receive a copy of it. [30] The Act requires the PCC to review the complaint (s. 29(1)(a)), investigate it (s. 29(1)(b)), create a report upon the completionof its investigation containing its recommendation (s. 29(2)) and provide a copy of the report from s. 29(2) to the College’s council, thecomplainant and the member (s. 29(5)). For purposes of making a recommendation, as required by s. 29(2), the PCC has two options.

Itsfirst possible course of action is to recommend that the discipline committee hear and determine the complaint (s. 29(2(a)). The secondoption is to recommend no further action be taken because either (

a) the matter has been resolved with the consent of the complainant andthe member (s. 29(2)(b)(i)) or (

b) in the opinion of the PCC, no further action is warranted (s. 29(2)(b)(ii)). In the matter at hand, only theavailability of the option under s. 29(2)(b)(ii) is in question, because the matter was not referred to the discipline committee andMr. Manderscheid did not consent to any resolution. [31] In my view, the wording of s. 29(2)(b)(

i) of the Act does not serve to expropriate for itself the entire territory of resolutions,thereby requiring the consent of the complainant in any matter in order to achieve resolution. If a complaint could only be resolved withthe acquiescence of a complainant, the language of that

section would need to be more restrictive. It is my view s. 29(2)(b)(ii) can beunderstood to contemplate a situation where a complaint is resolved without the consent of the complainant. The PCC is given widediscretion in determining whether further action is warranted, despite the absence of consent or the presence of a continuing objection bythe complainant.

Because the Act and the bylaws are silent as to steps the PCC can take in determining whether further action is required,s. 29 neither provides guidance nor places any restrictions on the PCC to arrive at a set of circumstances that permits it to give thisopinion.

Obviously, the PCC has to be guided by certain principles – including the objective of the Act – in order to responsibly exerciseits function and reach an opinion on remedial action, but the absence of legislative language that specifically references the use of a CCAis not determinative of the question of the PCC’s ability to use such an agreement. [32] From an overall reading of the Act, it is apparent that one of its purposes is the regulation of the profession in a manner thatprotects the public.

While there was a dearth of evidence regarding this aspect of the application, which may or may not have beenaddressed had the College been served with the application, I cannot conclude that the Legislature intended to limit the actions of the PCCin a manner that would prohibit the use of CCAs in the pursuit of the goal of public protection. If it did, the PCC would be severely limitedin its ability to assist in accomplishing this objective, because, absent the consent of the complainant, the PCC could only recommend thatthe matter proceed to the discipline committee or do nothing.

I do not read the Act as prohibiting the PCC from pursuing some middleground between these two extremes. Section 29(2)(b)(ii) allows the PCC to determine no further action is warranted based on the “facts ofthe case”. One highly relevant fact would be the member’s willingness to enter into a CCA satisfactory to the PCC. I do not interpret s. 29of the Act as prohibiting the PCC from entering into a confidential CCA and then, because such an agreement was in place, recommendingthat no further action be taken. [33] Finally, as I see it, what Mr.

Manderscheid would have this Court do is fill in a perceived gap in the legislation by interpretings. 29 so as to insert limiting words into the Act that do not presently exist. Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed(Markham, Ont: LexisNexis, 2014), draws a distinction between drafting errors and what she terms legislative gaps. With respect to thelatter, she observes that, “while courts may correct drafting errors, they have no jurisdiction to cure gaps in a legislative scheme” (atpara §12.14).

Further, as Sullivan goes on to point out, courts have been generally unwilling to cure the problem of gaps or under-inclusionbecause, as she puts it, “reading down to cure over-inclusion is considered

interpretation, provided it can be justified, whereas reading into cure under-inclusion is considered amendment and must be left to the legislature” (§12.16). [34] I cannot find error in the Chambers judge’s determination that the College, through its PCC, had the authority to enter into theAgreement.

She determined that the PCC initially wished to resolve the matter with the consent of the complainant, but then changed itsposition and resolved it confidentially without his consent and, in accordance with s. 29(2)(b)(ii) recommended no further action be taken.No error is revealed in this determination. [35] As a final observation on this point, even if I had found that the PCC did not have the authority to enter into the Agreement,that does not mean the Agreement would not be confidential under the principles of settlement privilege.

While I will not explore this issuefurther, it appears to be a doubtful proposition that settlement privilege can be side-stepped simply because it is subsequently discoveredthat one of the parties did not have the authority it purported to have when it entered into settlement discussions or reached an agreement. C. Discipline committee and the subject of the discipline [36] Mr. Manderscheid asserts the Chambers judge erred by determining the Agreement was reached between a discipline

committee and a person subject to discipline. He asserts this error is found in paragraph 12 of the Chambers Decision: [12] The document sought in this case is not a report of a disciplinary committee, it is an agreement between a disciplinary committee andthe subject of disciplinary proceedings. Dr. Ackerman objects to producing the CCA because she signed it on the understanding it wouldbe kept confidential. She asserts the CCA settled the complaint brought by the plaintiff and the CCA falls within settlement privilege. Iagree the application should be considered on this basis. [37] Mr.

Manderscheid points out that the PCC is a different committee than the discipline committee established under s. 32 of theAct. I find Mr. Manderscheid’s argument to be unpersuasive. The Chambers judge was not determining that the PCC was the disciplinecommittee that is referred to in s. 32 of the Act. As demonstrated by reading paragraph 12 in the context of the whole of the ChambersDecision, she was well aware of the statutory role of the PCC versus that of the discipline committee.

This choice of words does notundermine her decision or demonstrate an error that has any effect on the outcome of this appeal. [38] The Chambers Decision reveals that the Chambers judge’s purpose in discussing this topic was twofold. First, it was done inorder to show that the Agreement was not the report referred to in s. 29(5) of the Act, which, as mentioned above, is required to bedisclosed to a complainant, pursuant to that section. The second purpose of the finding was to address Mr.

Manderscheid’s reliance onFinley v University Hospital Board, Sugarman, McLean and Gormley (1986), (SK KB), 53 Sask R 124 (QB) [Finley],which held that a discipline report, absent special circumstances, should be disclosed within the litigation that arises from the subjectmatter of the discipline. After discussing this Court’s treatment of Finley in Kerr v Saskatchewan (Minister of Health) (1994), (SK CA), 123 Sask R 63 (CA), the Chambers judge concluded Finley did not apply because the Agreement was not a reportof a disciplinary committee.

She found instead that it was an agreement that fell to be assessed under settlement privilege. I agree.Mr. Manderscheid had already received the report to which he was entitled under s. 29(5) of the Act. The Agreement was a separateconsensual agreement that was distinct from a discipline report. It is an agreement whose confidentiality should be determined under theprinciples of settlement privilege. D. General principles regarding settlement privilege [39] The general principles that apply to the determination of settlement privilege are not in dispute.

The Chambers judge correctlyset out the three basic conditions from Hollinger that must be satisfied for settlement discussions to remain confidential: [16] It is well established that in order to foster the public policy favouring the settlement of litigation, the law will protect from disclosurecommunications made where (1) there is a litigious dispute; (2) the communication has been made “with the express or implied intentionit would not be disclosed in a legal proceeding in the event negotiations failed”; and (3) the purpose of the communication is to attempt toeffect a settlement … . [40] While the wording of the three requirements described in Hollinger refers to communications for the purposes of settlement,settlement privilege also attaches to a final settlement agreement reached as a result of those communications: Sable Offshore Energy Inc.v Ameron International Corporation, 2013 SCC 37 at paras 14–18, [2013] 2 SCR 623, and Union Carbide Canada Inc. v Bombardier Inc.,2014 SCC 35 at para 34, [2004] 1 SCR 800 [Union Carbide]. [41] In determining whether settlement privilege applies to a particular set of circumstances, a court must be mindful of the generalreason why the privilege exists, as discussed in Union Carbide: [31] Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle adispute.

Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear thatinformation they disclose will be used against them in litigation. This promotes honest and frank discussions between the parties, whichcan make it easier to reach a settlement: “In the absence of such protection, few parties would initiate settlement negotiations for fear thatany concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming” (A.W.Bryant, S.N. Lederman and M. K.

Fuerst, The Law of Evidence in Canada (3rd ed. 2009), at para. 14.315). [32] Encouraging settlements has been recognized as a priority in our overcrowded justice system, and settlement privilege has beenadopted for that purpose.

As Abella J. wrote in Sable Offshore, at para. 12, “[s]ettlement privilege promotes settlements.” She explainedthis as follows, at para. 13: Settlement negotiations have long been protected by the common law rule that “without prejudice” communications made in the course ofsuch negotiations are inadmissible (see David Vaver, “‘Without Prejudice’ Communications – Their Admissibility and Effect” (1974), 9U.B.C. L. Rev. 85, at p. 88).

The settlement privilege created by the “without prejudice” rule was based on the understanding that partieswill be more likely to settle if they have confidence from the outset that their negotiations will not be disclosed. As Oliver L.J. of theEnglish Court of Appeal explained in Cutts v.

Head, [1984] 1 All E.R. 597, at p. 605: [P]arties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by theknowledge that anything that is said in the course of such negotiations … may be used to their prejudice in the course of the proceedings.They should, as it was expressed by Clauson J in Scott Paper Co v. Drayton Paper Works Ltd (1927) 44 RPC 151 at 157, be encouragedfreely and frankly to put their cards on the table.

What is said during negotiations, in other words, will be more open, and therefore more fruitful, if the parties know that it cannot besubsequently disclosed. [42] The existence of settlement privilege not only prohibits one party to the negotiations or agreement from using it against theother party – subject to exceptions that don’t apply here – it also prohibits either party from disclosing it to a third party: Kequahtooway vCongregation of the Most Holy Redeemer and Archiepiscopal Corporation of Regina, 2009 SKQB 155, [2009] 10 WWR 699, and Sableat para 19. [43] Mr.

Manderscheid submits the first two requirements for settlement privilege have not been met. He argues that there was no

litigious dispute and that there was no intention for the Agreement to remain confidential. As he did in the court below, he concedes that the Agreement effected a settlement of the complaint. E. Existence of a litigious dispute [ 44 ] Mr. Manderscheid contends the Chambers judge erred in finding that a litigious dispute existed between Dr. Ackerman and the College in this matter. He asserts a litigious dispute did not arise because the complaint was still in the hands of the PCC, which had no authority of its own to impose discipline on Dr.

Ackerman and disciplinary proceedings had not been commenced under s. 33 of the Act . Mr. Manderscheid equates the PCC to an investigator and asserts that a litigious dispute did not exist at the investigation stage because there were no litigants. The respondents argue that the Chambers judge properly determined a litigious dispute had arisen when the PCC became involved with the complaint. Dr. Ackerman asserts she was adverse in interest to the PCC from the beginning of the investigation. [ 45 ] In my view, the Chambers judge did not err in determining a litigious dispute existed.

Her reasons for this determination were brief, and relied exclusively on Mustard . In Mustard , the defendant was subject to disciplinary proceedings by the Alberta Teachers’ Association. He had signed an agreed statement of facts for the purposes of the discipline proceedings but subsequently withdrew his guilty plea and the document was not tendered. In a separate civil action, the plaintiff sought disclosure of the untendered agreed statement of facts. In applying the test for settlement privilege, Lee J. found there was little doubt that disciplinary proceedings constitute litigious disputes.

In the matter at hand, the Chambers judge relied on this conclusion from Mustard to determine that a litigious dispute existed. It is my opinion that, while discipline proceedings had not yet been commenced under s. 33 of the Act , and the complaint remained at the PCC stage, the Chambers judge did not err in determining there was a litigious dispute. [ 46 ] It is not enough for a mere dispute to exist or be contemplated between the parties. Rather, the dispute must be litigious in nature: Blue Line Hockey Acquisition Co. v Orca Bay Hockey Ltd. Partnership , 2007 BCSC 143 at paras 103–104 .

However, litigious disputes are not limited to court proceedings. A helpful and clear statement of this principle is found in Nova Scotia Teachers Union v Nova Scotia (Attorney General) , 2019 NSSC 175 : [40] The requirement for litigation or contemplated litigation suggests that the privilege does not apply in circumstances where for example parties are negotiating a standard commercial transaction, with no thought to litigation. The concept has been broadened however beyond formal litigation commenced or to be commenced in court.

Litigation as such is not required and the privilege can apply in the context of settling other disputes. Examples might include matters being heard or potentially heard by a labour relations board, a human rights tribunal, a professional regulatory tribunal, or any number of other administrative tribunals in which parties appear for the purpose of resolving disputes. [ 47 ] For the purposes of satisfying the requirement of the existence of a litigious dispute, the dispute need only be in the contemplation of the parties.

In Sidney Lederman, Alan Bryant, Michelle Fuerst, and John Sopinka, The Law of Evidence in Canada , 5th ed (Toronto: LexisNexis Canada, 2018), the authors state, “[a] litigious dispute must be in existence or at least contemplated for this privilege to be recognized.

It is not necessary that proceedings have commenced” (at para §14.349). [ 48 ] The principle that litigation need only be contemplated to satisfy this requirement has been applied in numerous cases in Saskatchewan: see, for example, Tucker-Lester v Lester , 2012 SKQB 443 at paras 7–8 , 410 Sask R 153; Cleasby v Cleasby , 2013 SKQB 67 at para 4 , 415 Sask R 65; Kaytor v Unser , 2014 SKQB 181 at para 4 , 448 Sask R 246; Dyok v Dyok , 2014 SKQB 211 at para 11 , 450 Sask R 1; Fletcher v Davis , 2015 SKQB 52 at para 14 , 469 Sask R 192; and Alie-Kirkpatrick v Saskatoon (City) , 2019 SKQB 13 at para 35 , 85 MPLR (5th) 216. [ 49 ] The question of whether a litigious dispute was within the contemplation of Dr.

Ackerman must be examined in the context of the legislative scheme that governed the interaction between her and the PCC. In addition to the previously described provisions of the Act , it is helpful to set out some additional sections: Proceedings against former members 25.2

(1) No proceedings conducted pursuant to this Act shall be commenced against a former member more than two years after the day he or she became a former member.

(2) For the purposes of this section, a proceeding is commenced when the professional conduct committee, pursuant to subsection 29(1), is requested by its council to consider a complaint or is in receipt of a written complaint alleging that a member is guilty of professional misconduct or professional incompetence. … Suspension 31

(1) Where the professional conduct committee is of the opinion that, on the basis of the allegations or the nature of the case, the member’s licence should be suspended or the member should be prohibited from performing any procedure or authorized practice pending the outcome of the investigation or hearing, the professional conduct committee may, with the prior approval of its council, apply to a judge of the court for an order: (

a) suspending the licence of a member whose conduct is the subject of an investigation pursuant to subsection 29(1) or against whom a formal complaint has been made pursuant to subsection 29(2); or (

b) temporarily prohibiting a member described in clause (

a) from performing any specified procedure or authorized practice.

(2) An order of suspension or prohibition is not to extend past the earliest of: (a) 90 days from the date of the order;

(

b) the date of a report of the professional conduct committee made pursuant to clause 29(2)(b); (

c) where the discipline committee finds that a member is not guilty of professional misconduct or professional incompetence, the day of its decision; and (

d) where the discipline committee finds that a member is guilty of professional misconduct or professional incompetence, the day that an order is made pursuant to

section 34.

(3) The professional conduct committee may apply to the court for an extension of an order of suspension or prohibition made pursuant to subsection (1). … Discipline Hearing 33

(2) The professional conduct committee shall prosecute or direct the prosecution of the complaint, but professional conduct committee members shall not participate in any other manner in the hearing of the complaint except as witnesses when required. [ 50 ] These provisions provide some additional context in which to examine whether a litigious dispute can arise before a matter is referred to the discipline committee. While s. 25.2 applies only to former members, it is instructive to observe that the Act , for those purposes, considers proceedings to have commenced when the matter is referred to the PCC.

Section 31, on the other hand, applies to current members. Under that section, the PCC has the power to apply for a court order suspending a member or prohibiting the member from performing certain tasks. The potential for the exercise of this power by the PCC, prior to the matter being referred to the discipline committee, speaks to the potentially litigious nature of a matter while it remains in the hands of the PCC. Lastly, under s. 33(2) of the Act , if the matter had proceeded to a discipline hearing, the PCC would have prosecuted the complaint. As such, Dr.

Ackerman was dealing directly with her potential prosecutor when she signed the Agreement. [ 51 ] More importantly, s. 29 of the Act , provides for three potential outcomes after a complaint is referred to the PCC. First, it may recommend that the matter be referred to the discipline committee for a hearing. As such, during interactions with the PCC, the subject of a complaint faces the spectre of a disciplinary hearing being recommended in relation to their competence or conduct. The August 5, 2016, letter from the Registrar of the College, informing Dr.

Ackerman of the complaint, stated that, following its investigation, the PCC would file a report to the Discipline Committee with its recommendations. The letter described a disciplinary hearing as one possible outcome. It further stated that most complaints can be resolved with a CCA. The process clearly could lead to disciplinary proceedings under s. 33 of the Act . It is beyond dispute that disciplinary proceedings are a litigious dispute.

This lends support to a finding that a litigious dispute, in the circumstances of this case, was, at the very least, in the contemplation of the parties at the PCC stage. [ 52 ] The second option at the PCC stage is resolution of the complaint, with the consent of the complainant. The ability of the parties to resolve a matter at this stage, and avoid a potential disciplinary hearing, also speaks to a litigious dispute being at least in the contemplation of the parties. Lastly, the PCC’s ability to resolve the matter with Dr.

Ackerman without consent, and guarantee the avoidance of further proceedings, has the same hallmarks as the second option. [ 53 ] In my view, the facts of this case strongly suggest a litigious dispute existed or was in the parties’ contemplation. There was no requirement that discipline proceedings be instituted before a litigious dispute could be said to have been in existence or in the contemplation of the parties. The Chambers judge did not err in determining this requirement was satisfied. F. Intention to remain confidential [ 54 ] Mr.

Manderscheid asserts there was no intention for the Agreement to remain confidential. He relies on the absence of any statutory authority in the Act regarding its confidentiality and the College’s comments in its early correspondence. The respondents assert the Act does not affect the Agreement’s confidentiality and the evidence regarding this fact was uncontroverted. [ 55 ] This judgment has already addressed the issue of the confidentiality of CCAs in relation to the Act .

Section 29 of the Act specifies the document Mr. Manderscheid was entitled to receive from the s. 29 process. He received it, and the legislation does not entitle him to anything further. There is nothing in the Act that prohibits confidentiality of the Agreement or requires its disclosure. I am not prepared to determine that the absence of any specific provision in the Act requiring a CCA to be confidential means it cannot remain confidential if the parties to it so desire. [ 56 ] The issue of whether Dr. Ackerman and the PCC intended the Agreement to remain confidential is a question of fact.

There was direct evidence from Dr. Ackerman that she understood the Agreement would be confidential and the final letter from the Registrar of the College stated it “must be kept confidential”. Mr. Manderscheid’s view that the Agreement should not be confidential had no evidential value. [ 57 ] The Chambers judge committed no palpable and overriding error in finding that the parties to the Agreement intended it to remain confidential. There is no merit to Mr. Manderscheid’s argument on this issue. G.

Participation of the College in the application [ 58 ] As a final comment, I note that I would have been reluctant to grant the relief sought by Mr. Manderscheid even if any of his grounds of appeal had been successful. The Agreement involves two parties that are each entitled to assert settlement privilege. Such privilege cannot be unilaterally waived by one party in favour of a third party: Bellatrix Exploration v Penn West Petroleum Ltd ., 2013 ABCA 10 at para 26 , 358 DLR (4th) 628.

The College or the PCC, whichever it may be, as one of those parties to the Agreement, has not waived its privilege, was not served with the application and did not participate in the court proceedings.

VI. Conclusion [ 59 ] The appeal is dismissed with costs to the respondents in the usual way for the appeal and for the application for leave to appeal. “Tholl J.A.” Tholl J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Schwann J.A.” Schwann J.A.