Canada: Does "Privilege Of The Law Of Evidence" Include Solicitor-Client Documents?

A recent appellate case holds freedom of information rulings cannot override a party's claim of solicitor-client privilege.¹ The Supreme Court of Canada has granted leave to appeal. ² Will the Supreme Court empower Alberta's Information and Privacy Commissioner or, instead, buttress protections of privilege?

The Facts

The facts in University of Calgary v R. (J.) relate to an access request made by an individual to the University of Calgary under Alberta's Freedom of Information and Protection of Privacy Act ("FOIPPA"). The requester sought records in the University's possession which related to her while she was involved in a civil action against the University.

The University withheld certain records from the requester on the basis of solicitor-client privilege. The requester asked Alberta's Information and Privacy Commissioner to review the University's response. Ultimately, the Commissioner's delegate³ sought to compel the records over which the University asserted solicitor-client privilege.

The Commissioner argued that it had authority to compel such production pursuant to 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 (1) or (2).

The Alberta Court of the Queen's Bench Decision

A Chambers Judge of the Alberta Court of the Queen's Bench was satisfied using a "modern approach" to interpretation of FOIPPA that the records should be released to the requester. ⁴ The modern approach requires consideration of both a contextual and purposive analysis to determine the Legislature's intent. ⁵ The Chambers Judge reasoned that section 56(3) unambiguously authorizes the Commissioner to compel production of any records, including those subject to solicitor-client privilege. The Chambers Judge also held that a strict approach to statutory intrusions into solicitor-client privilege should not be applied at first instance, unless there is ambiguity. ⁶ Lastly, the Chambers Judge held that the ordinary meaning of section 56(3) was that the Commissioner had the power to compel the production of records subject to an assertion of solicitor-client privilege. ⁷

The Alberta Court of Appeal Grants the Appeal

The University appealed the order forcing them to produce documents it alleged were solicitor-client privileged to the Court of Appeal.

The principal issue in the Court of Appeal's decision was whether to interpret section 56(3) using a modern approach or by adopting the rule of strict construction. The Court of Appeal disagreed with the Chamber Judge's approach to interpretation of FOIPPA. It permitted the University to withhold the records from the Commissioner's delegate.

The Court of Appeal was persuaded by the Supreme Court's decision in Blood Tribe Department of Health v Canada (Privacy Commissioner).⁸ In Blood Tribe, Justice Binnie held that section 12 of the Personal Information Protection and Electronic Documents Act ("PIPEDA") (now section 12.1), was not specific enough to authorize the Commissioner to access solicitor-client communications. That provision authorizes the Commissioner 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.⁹ The Supreme Court held that compelling production as a result of this language would essentially be foregoing privilege by inference. ¹⁰ The Supreme Court emphasized that a "general production" provision which does not specifically indicate that parties are to produce solicitor-client communications will not be sufficient to compel production. ¹¹

On the basis of Blood Tribe, the Court of Appeal held that the starting point is that government is not presumptively entitled to solicitor-client information. The Court of Appeal held that any legislation displacing this presumption must have the "highest degree of clarity" in doing so. ¹² In the Court of Appeal's view, specific reference to solicitor-client privilege is required in order for subsection 56(3) to authorize the Commissioner to compel records over which solicitor-client privilege has been asserted. ¹³ Such specific reference did not exist in FOIPPA and, as noted above, the University was not compelled to release the records.

Implications

The Court of Appeal's analysis was limited to interpretation of 56(3) of Alberta's FOIPPA. However, it is possible that the Court of Appeal's interpretation of FOIPPA may be followed by courts in other jurisdictions. Various access to information legislation in jurisdictions across Canada provide that provincial administrative actors may review claims of privilege by institutions. Some provincial legislation uses the phrase "privilege of the law of evidence" as Alberta's FOIPPA does. Other legislation uses different language. For reference, section 56(3) of the Alberta FOIPPA and the similar provisions from other Canadian jurisdictions are copied in the chart below. As a consequence, the Supreme Court's hearing of University of Calgary could have importance in many Canadian jurisdictions.

The Supreme Court has previously considered the ability of Ontario's Privacy Commissioner to review the exercise of discretion by Ontario's institutions when claiming privilege in Ontario (Public Safety and Security) v. Criminal Lawyers' Association.¹⁴ There, the Supreme Court upheld an institution's claim of privilege without the institution articulating what discretionary factors it relied on when claiming privilege. The Supreme Court said that "solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis."¹⁵ In Ontario (Public Safety and Security), the Supreme Court did not consider the issue specifically of whether Ontario's Freedom of Information and Protection of Privacy Act¹⁶ is sufficiently specific to force production of solicitor-client privileged communications.

Interestingly, the Court of Appeal considered the lack of legal training by the Commissioner's delegates in Alberta. ¹⁷ This was relied upon as "affirmation" of the Court of Appeal's reasoning. ¹⁸ Are determinations of privilege more legally difficult to tackle than other forms of matters decided by administrative actors? ¹⁹ Is any tribunal whose jurisdiction could be in opposition to claims of privilege required to have lawyers review those determinations? It is possible that this is one issue the Supreme Court intends to address when ruling on the University of Calgary appeal.

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Footnotes

1 University of Calgary v R. (J.), 2015 ABCA 118 [University of Calgary].

2 2015 CarswellAlta 2011.

3 The court disapproved of reference to the Commissioner's delegate as an "adjudicator" due to a conflict with a defined term in FOIPPA. Parties who deal with access requests in other provinces will be familiar with the reference to delegates of the Commissioner's office as "adjudicators". 

4 See also the Chamber Judge's explanation of statutory interpretation University of Calgary v JR, 2013 ABQB 652 at paras 122-132.

5 University of Calgary at para 12.

6 Ibid.

7Ibid at para.13.

8 2008 SCC 44 [Bloodtribe]. 

9 Personal Information Protection and Electronic Documents Act, SC 2000, c 5 at subsections 12(1)(a) and (c).

10 Blood Tribe at para 11.

11 Ibid at para 21.

12 University of Calgary at paras 26 and 48.

13 Ibid at para 48.

14 Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23 [Ontario (Public Safety and Security)]. 

15 Ibid at para 75.

16 Freedom of Information and Protection of Privacy Act, RSO 1990, cF 31.

17 Ibid at para 21.

18 Ibid at para. 50(1): "Neither the Commissioner nor her delegate need be a lawyer, and therefore may lack the formal legal training necessary to appreciating fully the central importance of solicitor-client privilege to the legal system, or to assessing whether solicitor-client privilege has been properly asserted over a communication."

19 Certainly solicitor-client privilege has been described as being a principal of fundamental justice and associated with constitutional rights. 

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015