The Supreme Court of Canada has rejected the Canadian Privacy Commissioner’s attempt to expand her mandate to include testing solicitor–client privilege claims. In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, released July 17, 2008, the Supreme Court held that the Commissioner does not have the power to review documents to determine whether they are in fact privileged. That role remains reserved for the courts.

Background

The case involved the Commissioner’s investigation into a privacy complaint. An exemployee had requested that her former employer provide her with access to her personal information under the Personal Information Protection and Electronic Documents Act (PIPEDA). The ex-employee was ultimately provided with all requested documents except those over which solicitor–client privilege was claimed. PIPEDA provides that organizations are not required to give access to personal information that is protected by solicitor–client privilege. Despite this exemption, and a proper assertion of privilege by the employer, the Privacy Commissioner ordered the employer to produce the privileged documents for review. The Commissioner took an expansive view of her statutory mandate, asserting that she had the power to review privileged documents in order to ensure compliance with PIPEDA.

Supreme Court’s Decision

The Supreme Court unanimously held that PIPEDA does not authorize the Privacy Commissioner to review or compel production of documents over which solicitor– client privilege is claimed. The Court rejected the Commissioner’s argument that the Commission was analogous to a court, which has the authority to adjudicate privilege claims. The Supreme Court held that the Privacy Commissioner is an investigator, not an adjudicator. Further, the Privacy Commissioner, in pursuit of her mandate, can become adverse in interest to the party whose documents she seeks to access. The Court held that if the Privacy Commissioner wishes to challenge a claim for privilege, she must refer the issue to a court, a process that is permitted under PIPEDA.

This decision is the latest in a long line of Supreme Court of Canada cases re-affirming the importance of solicitor–client privilege. The Supreme Court also identified 14 other federal statutes that have substantially identical wording to provisions that the Privacy Commissioner relied on in PIPEDA. This Supreme Court decision should prevent the abrogation of privilege in those administrative regimes as well.