Canada: Step Off, Commissioner; These Records Are Privileged! Privilege Confirmed As A Substantive Rule Of Law Not To Be Interfered With, Even By Privacy Commissioner In An Investigation: Alberta (IPC) V. University Of Calgary 2016 SCC 53

The University of Calgary has succeded in establishing that the Alberta FOIPPA does not require a public body to produce to the Privacy Commissioner documents over which solicitor-client privilege is claimed: Alberta (IPC) v. University of Calgary 2016 SCC 53.

The University sought judicial review of a decision of the Information and Privacy Commissioner of Alberta after a delegate ordered the production of records over which solicitor-client privilege was claimed in order to verify that the privilege was properly asserted. The Alberta Court of Appeal overturned the Commissioner's order and the Commissioner appealed to the Supreme Court of Canada.

At the heart of the appeal was whether s. 56(3) of FOIPPA, which requires a public body to produce required records to the Commissioner "[d]espite . . . any privilege of the law of evidence", allows the Commissioner and her delegates to review documents over which solicitor-client privilege is claimed.

The SCC concluded that FOIPPA s. 56(3) does not require a public body to produce to the Commissioner documents over which solicitor-client privilege is claimed. The SCC said that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection. The substantive nature of solicitor-client privilege has been interpreted as meaning the privilege only yields in "certain clearly defined circumstances, and does not involve a balance of interests on a case-by-case basis." Such limited categories, which will only be satisfied in rare circumstances, include the accused's right to make full answer and defence and where public safety is at stake (para. 43).

This case follows a similar decision in respect of the federal legislation: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44.

The majority judgment, written by Cote J., also specifically addresses the jurisdiction of the BC Commissioner under the BC FOIPPA statute. At para. 61, the Court stated:

[61] "Unlike the legislation at hand, s. 44 of the British Columbia Act does not give the Commissioner broad powers to compel the production of records. Significantly, the British Columbia Commissioner does not have all the "powers, privileges and immunities of a commissioner under the Public Inquiries Act". Instead, under s. 44(2) of the British Columbia statute, much of that power resides in a court of inherent jurisdiction — the traditional arbiter of solicitor-client privilege. Consequently, it is difficult to conceive a reading of s. 44(3) of the British Columbia Act that would ascribe to the British Columbia Commissioner the type of power the appellant Commissioner here purports to have..."

As a result of the decision, neither the Alberta or BC Commissioners can compel public bodies to produce privileged documents in conducting inquiries and investigations. The public body will still have to establish privilege with evidence, rather than the records themselves.

In the event a public body chooses to provide the Commissioner privileged records for the purpose of review in the course of an investigation or inquiry, they will still probably be protected by privilege by virtue of the provision (2.1): "If a person discloses a record that is subject to solicitor client privilege to the commissioner at the request of the commissioner, or under subsection (1), the solicitor client privilege of the record is not affected by the disclosure."

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