In a recent ruling, the Supreme Court of Canada has defined the scope of powers of administrative officials in adjudicating privilege issues. In Alberta (Info. and Priv. Comm.) v. Univ. of Calgary, the top court emphasized the substantive nature of the solicitor-client privilege, and held that it can be set aside only by a law that is clear, explicit and unequivocal.
In 2008, during a civil action, an employee of the University of Calgary, alleging wrongful dismissal, made a request to access information under section 7 of Freedom of Information and Protection of Privacy Act, regarding certain documents and correspondence about her. After the university asserted solicitor-client privilege over some of the records, a delegate of the Commissioner issued a notice to produce documents, under Section 56(3) of the Act, to determine whether privilege was being properly claimed. The university refused to acquiesce claiming solicitor-client privilege. The university ultimately sought judicial review of the Commissioner's order.
The lower court confirmed the order, but Alberta's Court of Appeal later reversed the decision. Reaffirming the standard of review to correctness, it cited the Blood Tribe ruling, which established that "solicitor-client privilege cannot be set aside by inference" but only clear legislative language1.
In its ruling, the Supreme Court of Canada has reaffirmed the central importance of solicitor-client privilege to the legal system and as a whole, writing that solicitor-client privilege is one "that has acquired constitutional dimensions as both a principle of fundamental justice and a part of a client's fundamental right to privacy"2. It did acknowledge the importance of access to records for regulators in a modern democratic society, but that requests for such access must be "subject to certain exceptions."
In the case at hand, there was no clear intent in the law to set aside solicitor-client privilege. For starters, under section 27(1) of FOIPP, a public body may refuse to disclose information subject to legal privilege. What's more, section 56(3) says that the Commissioner can ask for records to be produced "and may examine any information" despite "any other enactment or any privilege of the law of evidence." "The Act does not mention solicitor-client privilege specifically.
The court emphasized this language because in its early days, the solicitor-client rule was one of evidence. It has since evolved to become a substantive rule that must remain as close to absolute as possible without interference, unless absolutely necessary. It is why, the court writes, the expression "privilege[s] of the law of evidence" does not cover the solicitor-client privilege.
The legislature could have used clear, explicit and unequivocal language to ensure the Commissioner's power to compel a public body to produce documents protected by such privilege. But it was not explicit in revoking that privilege.
In the end, the court found that the Commissioner did not have the power to review records over which solicitor-client privilege is claimed. By weighing in on how explicit legislation must be to empower administrative officials to review and adjudicate claims of solicitor-client privilege, the Supreme Court has set a high bar to challenge those claims.
Footnotes
1 Par. 13.
2 Par. 20.
Supreme Court Of Canada – The Solicitor-Client Privilege Not Far From Absolute
The author wishes to thank Daniel-Nicolas El Khoury, Marketing Intern, for his contribution
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