As outlined in our April 2015 Blakes Bulletin: Privilege Rules: Solicitor-Client Privilege Held Sacrosanct by Alberta Court of Appeal, the Supreme Court of Canada (SCC) has granted leave to appeal (on October 29, 2015) the Alberta Court of Appeal’s decision in University of Calgary v. JR, where the Alberta Court of Appeal held that Alberta’s Office of the Information and Privacy Commissioner (OIPC) does not have the statutory authority under the Freedom of Information and Protection of Privacy Act (FOIPPA) to order a public body to produce records over which it has asserted solicitor-client privilege.
CASE LAW ON SOLICITOR-CLIENT PRIVILEGE AND THE POWERS OF PRIVACY COMMISSIONERS
In 2008, the SCC in Canada (Privacy Commissioner) v. Blood Tribe Department of Health (Blood Tribe) held that the Privacy Commissioner of Canada does not have the statutory authority to compel the production of records for which solicitor-client privilege has been claimed.
Following this decision, and as discussed in our August 2012 Blakes Bulletin: Alberta Privacy Commissioner Upholds Privilege in Access Decision, the OIPC took the position that, due to fundamental differences with federal privacy legislation, it was nonetheless empowered under both Alberta’s private and public sector privacy legislation to order production of solicitor-client privileged records to verify the claim of privilege. To this end, the OIPC issued its Solicitor-Client Privilege Adjudication Protocol to guide organizations that wished to assert solicitor-client privilege in information privacy disputes.
Similarly, the courts in a number of Canadian jurisdictions have found that, unlike the federal Privacy Commissioner, certain provincial information and privacy commissioners can require production of solicitor-client privileged records to verify the claim of privilege. See: School District No. 49 (Central Coast) v. British Columbia (Information and Privacy Commissioner) and Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General). (After the 2011 Newfoundland decision was released, the Newfoundland and Labrador legislature amended its legislation in Bill 29 (An Act to Amend the Access to Information and Protection of Privacy Act) to expressly exempt the Privacy Commissioner from having the powers to determine solicitor-client privilege.
UNIVERSITY OF CALGARY V. JR
University of Calgary v. JR was the first court case to challenge the Alberta OIPC’s power to compel production of records for which solicitor-client privilege has been claimed. This case arose in the context of a request by a former employee for access to personal information about her in the possession of the University of Calgary. When the University of Calgary declined to provide un-redacted copies of the records for which solicitor-client privilege had been claimed for the OIPC’s review, the OIPC issued a “notice to produce records” on the basis of sections 56(2) and (3) of FOIPPA. Section 56(3) provides that a public body must produce to the OIPC any record requested despite “any privilege of the law of evidence.”
The Alberta Court of Appeal found that, in order to refute the presumption that the legislature does not intend to authorize the infringement of solicitor-client privilege, statutory language must be clear, explicit and specific. At paragraph 48, the court explained: “That is, it requires language which is absolutely clear, such that the underlying legislative intent is completely explicit. This requires specific reference to solicitor-client privilege.”
The Alberta Court of Appeal found that the language of section 56(3) of FOIPPA was not sufficiently clear, explicit and specific to authorize the Commissioner to order production of records over which a public body has asserted solicitor-client privilege. To hold otherwise would require an “impermissible inference” that the general direction to produce records “despite . . . any privilege of the law of evidence” implicitly includes solicitor-client privilege.
The SCC ruling represents a unique opportunity for Canada’s highest court to finally and definitively rule on the power of provincial information and privacy commissioners to order production of records over which an organization has asserted solicitor-client privilege, as it did for the federal Privacy Commissioner in the Blood Tribe decision. As such, the outcome of the appeal of University of Calgary v. JR should be of critical interest to counsel, the courts and privacy commissioners across Canada.