An individual board member may disclose confidential board information to their own lawyer on matters affecting them personally

Administrative law – Decisions reviewed – Regional Districts – Municipal boards – Board of Directors; Judicial review – Appeals – Standard of review – Reasonableness.

Anderson v. Strathcona (Regional District), [2024] B.C.J. No. 107, British Columbia Court of Appeal, January 24, 2024, L.A. Fenlon, G. Dickson and G.J. Fitch JJ.A.

The appellant was an elected board member of the respondent Regional District. The appellant disclosed confidential board information to her lawyer on matters that affected the appellant personally, for the purpose of seeking legal advice relating to alleged conflicts of interest. The Regional District censured the appellant for disclosing confidential board information.

On judicial review, the chambers judge upheld the Regional District’s decision censuring the appellant. The chambers judge found the decision was reasonable, on the basis that the appellant was not permitted to disclose confidential board information to her own lawyer, on the basis that the privileged that applied to that information was held by the administrative body itself (the board), not the individual board member.

On appeal, the Court of Appeal set aside the judicial review decision. The Court of Appeal found the statutory provisions obligating a board member to keep in confidence board information is intended to protect that information from public disclosure. An individual board member disclosing confidential board information to their own lawyer in order to obtain personal legal advice is not a public disclosure. The lawyer is duty-bound by solicitor-client privilege to maintain confidentiality over the information and not disclose it publicly. The individual board member has a right to obtain meaningful legal advice in matters of personal importance. On that basis, the Regional District’s decision could not be justified. The statutory scheme did not preclude the appellant from disclosing the confidential board information to her lawyer and therefore the decision censuring her was unreasonable.

The Court of Appeal allowed the appeal set aside the censure decision.

This case was digested by Joel A. Morris of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact him directly at [email protected].