Canadian Underwriter

Alberta privacy commissioner cannot compel production of records subject to solicitor-client privilege: Supreme Court

December 5, 2016   by Canadian Underwriter

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A constructive dismissal lawsuit, against the University of Calgary, has led to a ruling from the Supreme Court of Canada that Alberta’s Freedom of Information and Protection of Privacy Act does not require a public body turn over records – over which solicitor-client privilege is claimed – to the province’s Information and Privacy Commissioner.

Confidential documentsIn a ruling released Nov. 25, Canada’s highest court dismissed an appeal from the Alberta Information and Privacy Commissioner, of a ruling by the Alberta Court of Appeal.

The University of Calgary had been sued by a former employee alleging constructive dismissal. In 2008, that former employee made a request for information about herself, under the Freedom of Information and Protection of Privacy Act, for records that the university had not given her, claiming solicitor-client privilege.

After a delegate of the Information and Privacy Commissioner ordered the university to provide records, the university “provided a sworn affidavit from its Access and Privacy Coordinator indicating solicitor-client privilege had been asserted over the records,” Madam Justice Suzanne Côté of the Supreme Court of Canada wrote.

Section 56 (3) of the Alberta Freedom of Information and Protection of Privacy Act 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 that law.

The university sought judicial review. An issue before the court was whether Section 56 (3) “requires a public body to produce to the Commissioner records over which solicitor-client privilege is claimed, to review the validity of the claim.” The issue, of whether the university was required to submit those records to the former applicant, was not before the court.

The Alberta Court of Queen’s Bench  “found that the provisions of FOIPP do not work together effectively unless the Commissioner has the power to compel the production of information over which privilege is alleged since FOIPP provides no other mechanism to review that type of claim.”

However, the province’s appeal court ruled that the commissioner “did not have statutory authority to compel the production of records over which solicitor-client privilege was asserted.”

In upholding the appeal court ruling, Justice Côté suggested that without the assurance of solicitor-client privilege, people “cannot be expected to speak honestly and candidly with their lawyers.”

One precedent was the 2008 Supreme Court of Canada ruling in favour of the Blood Tribe Department of Health.

Blood Tribe was successful on judicial review of an order from the federal Privacy Commissioner to turn over letters from lawyers concerning a former Blood Tribe employee.

The Federal Court of Appeal had overturned a Federal Court ruling in favour of Blood Tribe, but the Supreme Court of Canada then restored the Federal Court’s decision.

The federal Personal Information Protection and Electronic Documents Act “gives the Privacy Commissioner express statutory authority to compel a person to produce any records that the Commissioner considers necessary to investigate a complaint ‘in the same manner and to the same extent as a superior court of record’ and to ‘receive and accept any evidence and other information . . . whether or not it is or would be admissible in a court of law,'” Mr. Justice Ian Binnie wrote in 2008 in Blood Tribe. However solicitor-client privilege “cannot be abrogated by inference,” the Supreme Court of Canada found in Blood Tribe.

“Seen through the eyes of the client, compelled disclosure to an administrative officer alone constitutes an infringement of the privilege,” Justice Côté wrote in Alberta (Information and Privacy Commissioner) v. University of Calgary. “Therefore, compelled disclosure to the Commissioner for the purpose of verifying solicitor-client privilege is itself an infringement of the privilege, regardless of whether or not the Commissioner may disclose the information onward to the applicant.”

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