The Supreme Court of Canada recently released an very significant decision on solicitor-client privilege, which should make it particularly difficult for Canadian regulatory boards, agencies and commissions to compel corporations to produce documents over which privilege is claimed.
In Privacy Commissioner of Canada v. Blood Tribe Department of Health , the Supreme Court of Canada made it quite clear that solicitor-client privilege is a substantive legal right.
Unless express language is included in the statutes that govern regulators or other statutory officials, the Court confirmed that these bodies are not permitted to "pierce" the privilege, not even for the purpose of assessing whether the claim for privilege is justified.
Without any specific statutory language, regulatory boards, agencies and commissions must pursue other means to address questions of privilege, such as making an application to the Courts. Canadian corporations and organizations can be assured that their privileged documents will be protected from disclosure in the context of a regulatory investigation, unless there is express statutory language to the contrary.
The Blood Tribe decision is a significant re-assertion of the importance of solicitor-client privilege by the Supreme Court of Canada. However, it stands in contrast to the expressed need of some regulators to review claims of solicitor-client privilege.
We expect that some regulators may be dissatisfied with the Supreme Court’s determination in this case. Debates may emerge about whether regulators should be expressly granted the authority to review documents protected by solicitor-client privilege or whether this should remain the domain of the courts.
If you wish to review the Blood Tribe decision in its entirety, you may obtain a copy online at: http://www.canlii.org/en/ca/scc/doc/2008/2008scc44/2008scc44.html.