Canada: Privilege Rules: Solicitor-Client Privilege Held Sacrosanct By Alberta Court Of Appeal

In the Alberta Court of Appeal's ruling this month in University of Calgary v. JR, the court held that the Alberta Information and Privacy Commissioner (OIPC) does not have the statutory authority under the Freedom of Information and Protection of Privacy Act (FOIPPA) to order a public body to produce records over which it has asserted solicitor-client privilege. This decision diverges from prior case law in which the courts in a number of Canadian jurisdictions have found that, unlike the federal Privacy Commissioner, certain provincial information and privacy commissioners can require production of solicitor-client privileged records to verify the claim of privilege.

University of Calgary v. JR will likely have important implications for Alberta's private sector privacy legislation, which contains language identical to that in FOIPPA regarding the production of privileged records, as well as other statutory provisions that could be interpreted as authorizing the infringement of solicitor-client privilege.

BACKGROUND

In 2008, the Supreme Court of Canada (SCC) in Canada (Privacy Commissioner) v. Blood Tribe Department of Health (Blood Tribe) held that the Privacy Commissioner of Canada does not have the statutory authority to compel the production of records for which solicitor-client privilege has been claimed.

Following this decision, and as discussed in our August 2012 Blakes Bulletin: Alberta Privacy Commissioner Upholds Privilege in Access Decision, the OIPC took the position that, due to fundamental differences with federal privacy legislation, it was nonetheless empowered under both Alberta's private and public sector privacy legislation to order production of solicitor-client privileged records to verify the claim of privilege. To this end, the OIPC issued its Solicitor-Client Privilege Adjudication Protocol to guide organizations that wished to assert solicitor-client privilege in information privacy disputes.

University of Calgary v. JR was the first court case to challenge the OIPC's power to compel production of records for which solicitor-client privilege has been claimed. This case arose in the context of a request by a former employee for access to personal information about her in the possession of the University of Calgary. When the University of Calgary declined to provide un-redacted copies of the records for which solicitor-client privilege had been claimed for the OIPC's review, the OIPC issued a "notice to produce records" on the basis of sections 56(2) and (3) of FOIPPA. Section 56(3) provides that a public body must produce to the OIPC any record requested despite "any privilege of the law of evidence."

The University of Calgary sought judicial review of the OIPC's decision to issue the notice to produce records.

CHAMBERS JUDGE DECISION

The chambers judge confirmed the OIPC's authority to order production of records over which a public body has asserted solicitor-client privilege. He acknowledged that legislative language must be "exceptionally clear" to authorize the infringement of solicitor-client privilege. However, consistent with prior case law from Newfoundland and British Columbia, he held that a restrictive interpretation of such legislative language is only appropriate where a contextual and purposive approach to statutory interpretation results in ambiguity as to the intended meaning.

With respect to section 56(3) of FOIPPA, the chambers judge found that the ordinary meaning of the phrase "despite . . .  any privilege of the law of evidence" was such that the Commissioner was empowered to compel production of records for which solicitor-client privilege had been claimed.

COURT OF APPEAL DECISION

The Court of Appeal reversed the decision of the chambers judge, holding that FOIPPA does not authorize the OIPC to order a public body to produce records over which it has asserted solicitor-client privilege. In arriving at this conclusion, the court emphasized "solicitor-client privilege's central and . . . unique importance to the proper functioning of the legal system" (paragraph 48).

The court declined to follow the cases cited by the chambers judge, finding instead that the correct approach to statutory interpretation in these circumstances had been squarely decided by the SCC in Blood Tribe. Rather than beginning with a contextual and purposive approach to the interpretation of section 56(3) of FOIPPA, the court held that the starting point for analysis is that "the Legislature is presumed not to have intended to authorize the infringement of solicitor-client privilege. This presumption may be refuted only by text that can be understood as the product of deliberate legislative intent that it have that very effect" (paragraph 37).

In order to refute the presumption that the legislature does not intend to authorize the infringement of solicitor-client privilege, statutory language must be clear, explicit and specific. At paragraph 48, the court explained: "That is, it requires language which is absolutely clear, such that the underlying legislative intent is completely explicit. This requires specific reference to solicitor-client privilege."

The court found that the language of section 56(3) of FOIPPA was not sufficiently clear, explicit and specific to authorize the Commissioner to order production of records over which a public body has asserted solicitor-client privilege. To hold otherwise would require an "impermissible inference" that the general direction to produce records "despite . . . any privilege of the law of evidence" implicitly includes solicitor-client privilege.

CONCLUSION

Barring further appeal to the SCC, the Court of Appeal's decision in University of Calgary v. JR establishes that the OIPC does not have the statutory authority under FOIPPA to compel production of records for which solicitor-client privilege is claimed. This conclusion very likely extends to Alberta's private sector privacy legislation as well, and could make the OIPC's Solicitor-Client Privilege Adjudication Protocol obsolete.

Beyond Alberta's borders, University of Calgary v. JR provides important guidance for the interpretation of statutory provisions that could authorize the infringement of solicitor-client privilege, and may suggest a turning point in the case law regarding the power of provincial information and privacy commissioners to order production of records over which an organization has asserted solicitor-client privilege.

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