The B.C. Supreme Court’s recent reasons in School District No. 49 (Central Coast) v British Columbia (Information and Privacy Commissioner), confirms the Commissioner’s jurisdiction to decide questions of solicitor-client privilege over information in public body records. However, the Court also concluded that the Commissioner incorrectly decided that information about legal accounts paid by the School District in a particular case was not protected by solicitor-client privilege and the Commissioner’s order was set aside.
The School District, relying on the 2008 decision of the Supreme Court of Canada in Canada (Privacy Commissioner) v Blood Tribe Department of Health, argued that FIPPA did not clearly grant the Commissioner jurisdiction to adjudicate issues of solicitor-client privilege. In Blood Tribe, the Supreme Court of Canada confirmed the importance of solicitor-client privilege as fundamental to the functioning of the legal system. The Court found that the adjudication of claims of solicitor-client privilege, including the power to compel production of documents to a decision-maker for the purpose of determining privilege, was an abrogation of the privilege. A legislative provision relied on to abrogate solicitor-client privilege requires clear and explicit language and will be read restrictively. The Court concluded that the broadly worded grant of authority in the Personal Information Protection and Electronic Documents Act (“PIPEDA“) relied on by the Privacy Commissoner of Canada was not sufficient to abrogate the privilege.
The B.C. Supreme Court distinguished the broad grant of authority in PIPEDA from the specific provisions in FIPPA setting out the Commissioner’s powers of adjudication and concluded that the legislature intended to give the Commissioner the power to adjudicate questions of solicitor-client privilege. The Court further concluded that the Commissioner’s jurisdiction to adjudicate questions of solicitor-client privilege extended to include the power to compel a public body to produce the records over which privilege is claimed to allow the Commissioner to assess the validity of the claim.
Followng the Blood Tribe decision, the Commissioner’s office developed a Practice Note on its conduct of reviews of decisions by public bodies under FIPPA or organizations under the Personal Information Protection Act to withhold records on the basis of solicitor-client privilege. The legally-trained review officer will initially rely on factual evidence provided by the parties on the claim of privilege and will only request access to the records where examination of the records is necessary to fairly adjudicate the existence of the privilege.