The Supreme Court of Canada is revisiting the issue of whether a privacy commissioner can force disclosure of documents where solicitor-client privilege is asserted.
In 2008, the Supreme Court considered a privacy commissioner’s powers under Canada’s federal private sector legislation and concluded (in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44) that the federal privacy commissioner could not compel the production of documents over which privilege is asserted . This time around, the court is examining the privacy commissioner’s powers under provincial privacy legislation, which has language that differs from that found in the federal privacy legislation.
On Oct. 29, 2015, Canada’s top court granted leave to appeal in University of Calgary v JR, 2015 ABCA 118. In that decision, the Alberta Court of Appeal reversed the lower court’s order that documents be produced to the Privacy Commissioner by the university notwithstanding that the university asserted privilege over them. That decision was detailed in McCarthy Tétrault’s Canadian Appeals Monitor blog here.
JR had sued the University for wrongful dismissal and other causes of action. In the course of the litigation, JR made an access to information request under section 7 of the province’s Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 (“FOIPPA”). The University disclosed some, but not all, of the records, withholding records it asserted were subject to solicitor-client privilege. Following unsuccessful mediation, the Alberta Privacy Commissioner commenced a formal inquiry through an appointed delegate into whether the University was exempt from producing the outstanding documents. The Commissioner’s delegate ordered production of certain records so the Commissioner could determine the propriety of the University’s claim that those records were subject to solicitor-client privilege. The delegate’s decision was then judicially reviewed.
Central to the consideration at both levels of court was the statutory interpretation of section 56(3) of FOIPPA, which states:
Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection … (2).
The Alberta Court of Queen’s Bench found that the plain meaning of the provision gave the Commissioner the power to compel the records. However, the Court of Appeal applied the Supreme Court’s reasoning in Blood Tribe to determine the Commissioner or her delegate cannot order a public body to produce records over which it has asserted solicitor-client privilege. The Supreme Court will now consider the issue.