The privileged position that solicitor-client privilege occupies in our legal system was recently reiterated and reinforced in the context of access to information requests in University of Calgary v JR. On April 2, 2015, the Alberta Court of Appeal considered the authority delegated to the Office of the Information and Privacy Commissioner (“OIPC”) as it went head to head against solicitor-client privilege.
In University of Calgary v JR, the Court of Appeal considered the appeal from a chambers judge’s decision ruling in favour of the OIPC regarding its demand that the University to produce records over which it asserted privilege, pursuant to an access to information request made by JR in 2008.
JR had commenced a wrongful dismissal claim in 2008 against the University, which was eventually resolved in JR v University of Calgary by the Court of Queen’s Bench in 2012. At the same time, JR had also made an access to information request pursuant to s. 7 of the Alberta Freedom of Information and Protection of Privacy Act (“FOIPPA”). In the request, JR sought all relevant emails, file information, letters, records of discussion, third party correspondence, personal notes, and internal meeting notes in the University’s possession. The University disclosed some documents, but withheld certain records on the basis that they were protected by solicitor-client privilege.
Office of the Information and Privacy Commissioner
The Information and Privacy Commissioner (the “Commissioner”) commenced a formal inquiry, appointing a delegate with inquiry powers pursuant to s. 61 of FOIPPA. In the course of this inquiry, the University was asked to produce unredacted copies of the requested records over which it was asserting privilege, for the purpose of verifying the claim of privilege. The delegate invoked s. 56 of FOIPPA in issuing a “notice to produce records”, which states:
“Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection…”
The University sought judicial review of the delegate’s decision to issue the notice to produce.
Court of Queen’s Bench
The chambers judge found that the plain meaning of s. 56 allowed the Commissioner to compel the production of records, despite the privilege asserted by the University. The University appealed the decision, arguing that the chambers judge erred in interpreting s. 56 of FOIPPA as empowering the Commissioner to compel production of records over which solicitor-client privilege is asserted. The Law Society of Alberta also intervened at the Court of Appeal, submitting similarly that a contextual interpretation of s. 56 would take into account the importance of solicitor-client privilege in our legal system.
Court of Appeal
The sanctity and fundamental importance of solicitor-client privilege in the Canadian legal system is undeniable and was undisputed in this case; the presumption with regard to solicitor-client privilege is that the protected information lies beyond the reach of all others, including the state. The essential issue for the Court of Appeal was whether, in enacting s. 56, the legislature intended to displace this common law principle. The Commissioner’s position was that FOIPPA had clearly delegated the ability to collect the records at issue and assess the privilege claimed; the University’s position was that the Commissioner did not have the authority it claimed to possess.
In determining whether the legislature had intended to displace solicitor-client privilege in s. 56 of FOIPPA, the Court of Appeal discussed the applicable principles of statutory interpretation at length. It held that because of the central and fundamental importance of solicitor-client privilege to our legal system, and the necessity of preserving the solicitor-client relationship that is integral to the administration of justice, any statute that may be interpreted as trenching on that privilege must be interpreted restrictively.
The Court considered the Supreme Court of Canada decision in Canada (Privacy Commissioner) v Blood Tribe Department of Health and found that it ousted the modern, purposive approach to statutory interpretation in cases where the legislation could be interpreted to trench on principles of privilege. Not only did the Court of Appeal reject the ubiquitous “modern approach to statutory interpretation” in cases where solicitor-client privilege is at issue, but it also rejected the middle ground of using the restrictive interpretation as a “presumption of last resort”, as had been endorsed by the Supreme Court of Canada in certain cases.
Applying the restrictive interpretation to the present case, because s. 56 of FOIPPA failed to clearly and explicitly discuss abrogation of solicitor-client privilege, it could not be interpreted to provide the Commissioner or the delegate to order a public body to produce records over which solicitor-client privilege was asserted. The Court of Appeal commented on a few other considerations that strongly militated against an interpretation that would allow disclosure in the case at bar: (i) neither the Commissioner or the delegate must be a lawyer, and as a result may lack the expertise necessary to evaluate claims of privilege; (ii) records disclosed to the Commissioner may be further disclosed in certain circumstances to the Minister of Justice and Solicitor General; and (iii) the language of s. 56, in using the word “organization”, would include law firms.
University of Calgary v JR is another strong reaffirmation of the essential nature of solicitor-client privilege in our legal system, and a message to legislators and governmental bodies: in order for a statute to authorize infringement of privilege, its language must be abundantly clear. The Alberta Court of Appeal and the Supreme Court of Canada have both endorsed an extremely restrictive interpretive approach to legislation where privilege is at stake. At its core, the University of Calgary v JR decision is a statement by the court that threats to solicitor-client privilege will be carefully evaluated and interpreted, in order to ensure that this key legal principle enjoys the highest level of protection possible. The importance of solicitor-client privilege is such that a legislature may not abrogate it by mere inference.
As information and privacy legislation continues to evolve across Canada, businesses and legislators alike should pay careful attention to the wording of statutes that may infringe on various types of common law privilege. However, the University of Calgary v JR decision demonstrates that, absent clear and unambiguous wording, the courts will continue to uphold the sacrosanctity of privilege in our legal system.
*Kim Macnab is an articling student at the McCarthy Tétrault Calgary office.
University of Calgary v JR, 2015 ABCA 118
Date of Decision: April 2, 2015