Canada: Canadian Courts Refuse To Settle For Weak Privacy Rights: "Imperial Oil Limited v Alberta"


Last week, the Supreme Court of Canada ("SCC") dismissed leave to appeal the Alberta Court of Appeal ("ABCA") decision in Imperial Oil Limited v Alberta., thereby endorsing the ABCA's approach to settlement privilege in the context of applications under the Freedom of Information and Protection of Privacy Act ("FOIPP").1 Settlement privilege is alive, well, and strongly protected in Alberta, even in the more public regulatory context, as long as parties fall within the exceptions set out in ss. 16 and 27 of FOIPP.


Imperial Oil Limited ("Imperial") operated a refinery in the Lynnview Ridge area of southeast Calgary until it was decommissioned in 1975. Petroleum and lead contamination was discovered in the lands after it had been developed into a residential area. In the early 2000s, environmental protection orders relating to the cleanup were issued, some of which Imperial appealed. After a mediation process, Imperial and the Alberta Environment Director signed a Remediation Agreement on March 31, 2005 (the "Remediation Agreement").

The City of Calgary (the "City"), as a significant landowner in the area and the municipality that approved the Lynnview subdivision, applied under FOIPP for a copy of the Remediation Agreement. Alberta Environment refused to release the Remediation Agreement on the basis of confidentiality and settlement privilege, and the City applied to the Alberta Information and Privacy Commissioner (the "Commissioner"), who ordered the agreement's release. Imperial applied for judicial review of the Commissioner's decision, which was quashed by the Alberta Court of Queen's Bench. The ABCA agreed, finding that the Remediation Agreement was privileged and confidential on the basis of ss. 16 and 27 of FOIPP, which provide exceptions to production on the basis of confidentiality and privilege. On February 19, 2015, the SCC dismissed leave to appeal the ABCA decision.

Alberta Court of Appeal Decision

The ABCA struck the appeal on a narrow issue: the court found that the Commissioner had no standing to appeal a judicial review decision quashing the Commissioner's order.2 However, the court found that other substantive issues on appeal warranted further comment. The ABCA noted that the Remediation Agreement specifically referred to confidentiality and privilege, but also highlighted the applicability of common law settlement privilege.3

Section 16 of FOIPP provides exceptions to disclosure on the basis of confidentiality, drawing a line between public information in the hands of public bodies (presumptively disclosed) and private information in the hands of public bodies (may be protected from disclosure). Section 27 of FOIPP provides exceptions to disclosure on the basis of privilege, mandating that the head of a public body must refuse to disclose information subject to privilege where the information relates to a person other than the public body.4

Section 16: Confidentiality

Section 16 of FOIPP provides that disclosure will be refused where (a) the information reveals trade secrets, commercial, financial, labour relations, scientific or technical information of a third party; (b) the information is supplied in confidence, either implicitly or explicitly; and (c) the disclosure is reasonably expected to cause some harm or loss to third parties or others. Courts deciding whether information is disclosed under s. 16 must balance the important goal of broad disclosure, particularly in the more public regulatory context, and legitimate private interests and the public interest in promoting innovation and development.5

Most importantly under s. 16, parties wishing to protect their information must establish that they intended to provide the information in confidence; while parties cannot "contract out" of FOIPP, they can essentially "contract in" to the s. 16 exception by ensuring that the information is supplied in confidence. In determining intention, the "perceptions of the parties on whether they intended to supply the information in confidence is of overriding importance."6 The ABCA found that the Commissioner had not applied the subjective test of determining intention, and the information also met the s. 16 requirements of scientific and technical data, and harm to Imperial's negotiating position.7 The ABCA therefore found that the Commissioner's decision on confidentiality was unreasonable.

Section 27: Privilege

Because of s. 27 of FOIPP, if Imperial could establish that the Remediation Agreement was privileged, this would be a complete answer to the City's application for disclosure.8 The City argued that the Remediation Agreement was not privileged, commenting that the City's desire to see the Remediation Agreement was not out of idle curiosity, but because the City had outstanding issues with Imperial regarding the Lynnview Ridge remediation.9 The court rejected this argument, commenting on the purpose of settlement privilege:

"The exact purpose of the settlement privilege is to allow the withholding of the settlement terms from an adverse party that has related unsettled claims against the party asserting the privilege."10

The City was not entitled to the Remediation Agreement, and s. 27 of FOIPP precluded the Commissioner from ordering its disclosure. Most importantly, the ABCA rejected the Commissioner's argument that the law of settlement privilege should be applied differently to disputes with a public interest component:

"[T]he reasons behind the recognition of the settlement privilege are the same regardless of the nature of the dispute."11

The court drew no distinction between public or private disputes, finding that the principles of settlement privilege are equally important in both cases, and ultimately found that s. 27 mandated nondisclosure of the Remediation Agreement because it was privileged.


The SCC's dismissal of leave to appeal the ABCA's decision represents judicial endorsement of settlement privilege in the specific context of FOIPP requests. The decision indicates strong protection of privilege in Canada, even in the context of public regulatory bodies and FOIPP, where public policy considerations against privilege are more likely engaged.

Parties entering into settlement negotiations should take heart in the judiciary's protection of their private information, but should take certain precautions; parties should clearly state their intention that information exchanged is privileged and confidential, as the s. 16 exception to disclosure requires that the information be supplied, either implicitly or explicitly, in confidence. In a broader context, the decision demonstrates the type of statutory interpretation in which courts will engage where confidentiality or privilege provisions apply.


[1] Information and Privacy Commissioner of Alberta v Imperial Oil Limited, et al., case no. 36098, Judgments of the Supreme Court of Canada, online (; Imperial Oil Limited v Alberta (Information and Privacy Commissioner, 2014 ABCA 231, online: ( [Imperial]; Freedom of Information and Protection of Privacy Act, RSA 2000, c F-26 [FOIPP].

[2] A statutory tribunal may not appeal from a judicial review order quashing its decision unless its own jurisdiction is in question: Imperial at para 23, citing Brewer v Fraser Milner Casgrain LLP, 2008 ABCA 160.

[3] Imperial at para 52, citing Union Carbide Canada Inc. v Bombardier Inc., 2014 SCC 35.

[4] FOIPP ss. 16, 27.

[5] Imperial at para 67.

[6] Imperial at para 75.

[7] Imperial at para 80.

[8] Imperial at para 57.

[9] Imperial at para 60.

[10] Imperial at para 61.

[11] Imperial at para 63.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions