In two recent decisions, the Supreme Court of Canada soundly rejected the power of Government agencies to compel the production of documents over which a person or company maintains legal professional privilege.

The first case, Alberta (Information and Privacy Commissioner) v University of Calgary [2016] SCC 53,  concerned an order of the Information and Privacy Commissioner of Alberta for the production of records over which the University of Calgary had claimed solicitor-client privilege.  The Commissioner was dissatisfied with the University's claim to privilege.  The Commissioner therefore issued a Notice to Produce Records under s 56(3) of the Freedom of Information and Protection of Privacy Act.  Under that section, a public body must produce required records to the Commissioner “despite . . . any privilege of the law of evidence”.   

Similarly, in the second case, Lizotte v Aviva Insurance Company of Canada [2016] SCC 52, the assistant syndic of the Chambre de l’assurance de dommages asked Aviva Insurance Company of Canada to send her a complete copy of its claim file with respect to one of its insured.  Aviva refused to do so on the basis that some of the requested documents were protected by litigation privilege.  In response to that refusal, the syndic filed a motion for a declaratory judgment, arguing that the relevant statutory provision created an obligation to produce “any . . . document” concerning the activities of a representative whose professional conduct is being investigated by the Chamber, and that this was sufficient to lift the privilege.

Both agencies therefore relied on a general power to produce documents as sufficient to stultify legal professional privilege.

The Supreme Court of Canada rejected those arguments.  In both decisions it emphasised that legal professional privilege is a fundamental principle of the common law that cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. 

In the University case, the apparent abrogation of the privilege by reference to "any privilege of the law of evidence" was equivocal.  As in New Zealand, it is well established in Canada that legal professional privilege is not merely a rule of evidence but a substantive right on which the administration of the legal system as a whole depends.  The section did not embrace, and therefore stultify the substantive right to legal professional privilege.

In the Aviva case, the empowerment for the syndic to request the production of "any document" was simply a general production provision that did not specifically indicate that the production must include records for which privilege is claimed.

These principles are all well-established in New Zealand, which was amongst the first in the Commonwealth to recognise that the Executive has no power under statute except by express words or necessary implication to request the production of privileged documents outside of legal proceedings (Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA)). 

Even so, unlawful requests for privileged documents are routinely made by regulatory agencies in New Zealand.  The Supreme Court of Canada's rejection of the Executive's power to do so adds grist to the mill for a company or individual that intends to protect its rights to legal professional privilege.