The Office of the Information and Privacy Commissioner issued a notice to produce records to a university, demanding that it provide copies of all documents that fell under the complainant's request, including those over which the university asserted solicitor-client privilege. Authority to do so was said to be provided by s. 56(3) of FOIPPA. The Court of Appeal held that the principles of strict interpretation needed to be applied to s. 56(3), and upon that application, it was clear that the provision did not confer authority upon the Commissioner to require disclosure of records from a public body that were subject to solicitor-client privilege. The language of the provision was not clear or explicit enough to warrant an override of privilege, which is essential to our legal system and the administration of justice.

[2015] A.J. No. 348

2015 ABCA 118

Alberta Court of Appeal

P.A. Rowbotham, M.B. Bielby and R.S. Brown JJ.A.

April 2, 2015

The respondent sued the University for wrongful dismissal. Concurrent to her civil action, the complainant also made a request to access all of the information in the University’s possession regarding her under section 7 of the Freedom of Information and Protection of Privacy Act (“FOIPPA”). The University provided some documents in response to her request, but withheld others on the basis of solicitor-client privilege. The respondent asked the Office of the Information and Privacy Commissioner to review the University’s response and to evaluate the validity of its assertion of solicitor-client privilege.

When the University declined to provide copies of the documents, the Commissioner invoked s. 56(2) of FOIPPA and issued a notice to produce records. That notice to produce invoked s. 56(3) of FOIPPA which states that, “Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner … any record … required under subsection … (2).” The University sought judicial review of the Commissioner’s decision to issue the notice to produce. The chambers judge, on judicial review, considered whether s. 56(3) confers authority upon the Commissioner to issue a notice to produce in relation to records over which solicitor-client privilege has been asserted. Applying the modern approach to statutory interpretation, the chambers judge found that it did.

On appeal, the Court noted that while the Commissioner’s decisions in interpreting and applying its home statute are generally entitled to deference, deference is not accorded where the question raises a question of law that is both of central importance to the legal system as a whole and outside the Commissioner’s specialized area of expertise. The Court held that solicitor-client privilege is of central importance to the legal system as a whole, which supports a correctness review.

After providing an overview of the law on statutory interpretation, the Court held that because of the central importance of solicitor-client privilege to our legal system and to the preservation of a relationship which is integral to the administration of justice, where statutory language might be interpreted as authorizing an infringement of a solicitor-client privilege, the rule of strict construction applies. In applying the principles of strict interpretation to s. 56(3), the Court found that it does not authorize the Commissioner to order a public body to produce records over which it has asserted solicitor-client privilege. In the Court’s view, the wording of s. 56(3) was not clear and explicit enough in this regard. As a result, the chambers judge's decision was found to be incorrect, and the appeal was allowed.