In University of Calgary v JR, 2015 ABCA
118, the Alberta Court of Appeal strongly affirmed the central
importance of solicitor-client privilege to the proper functioning
of the legal system. At issue was whether the Freedom of
Information and Protection of Privacy Act, RSA 2000, c F-25
[FOIPPA], authorized the Alberta Privacy Commissioner (or
her delegate) to compel a public body to produce to the
Commissioner records over which solicitor-client privilege is
claimed in order to determine the veracity of the privilege claim.
The Court of Appeal held that the Commissioner does not have such
The issue arose in the context of a wrongful dismissal claim by
JR against her former employer, the University of Calgary. In
addition to the usual exchange of records in the course of
litigation, JR also made an access to information request under
FOIPPA for all records in the University's possession
relating to her. In response, the University produced some records,
but objected to producing others on the basis of solicitor-client
privilege. JR asked the Commissioner to review the University's
response to the access request, and in particular the
University's assertion of solicitor-client privilege.
The Commissioner appointed a delegate to conduct a formal
inquiry to the University's response. The delegate requested
that the University produce un-redacted copies of the records over
which privilege was claimed. When the University refused this
request, the Commissioner's delegate issued a "notice to
produce records" under subsections 56(2) and (3) of
FOIPPA, which allow the Commissioner to compel the
production of records "despite... any privilege of the law of
evidence" (the Notice). The University's application for
judicial review of the Notice was dismissed by a chambers
On appeal, the Court reversed the chamber judge's decision,
and held that s 56 of FOIPPA does not authorize the
Commissioner to infringe solicitor-client privilege. The Court held
that any statutory language purporting to abrogate solicitor-client
privilege must be interpreted restrictively. Following the Supreme
Court of Canada's decision in Canada (Privacy Commissioner)
v Blood Tribe Department of Health, 2008 SCC 44, the Court set
out the following three principles for determining whether a
statutory enactment authorizes the infringement of solicitor-client
Statutory language must be clear,
unequivocal, and unambiguous,
Statutory language cannot be taken as
authorizing the infringement of solicitor-client privilege by
inference or implication, and
General language granting power to
compel production of records is insufficiently specific to
authorize a demand for production of records over which
solicitor-client privilege is asserted.
In short, the statutory language must be "clear, explicit
and specific" which "requires specific reference to
The Court also affirmed the principle that solicitor-client
privilege is not merely a rule of evidence, but rather a
substantive rule of law of central importance to the legal system.
It noted that solicitor-client privilege is nearly absolute, and
can only be abrogated in rare cases – e.g., where
there is a risk of wrongful conviction – and even then only
to the smallest extent necessary. Even where infringement is
authorized or justified, it must be strictly construed.
In the result, the Court held that s 56 of FOIPPA did
not authorize the Commissioner (or her delegate) to infringe
solicitor-client privilege. Such authorization would have to be
inferred from the words "despite... any privilege of the law
of evidence," which does not accord with the clear, explicit
and specific threshold that is required. Moreover, solicitor-client
privilege is not a mere rule of evidence.
This decision is a welcome affirmation from the Court of Appeal
that statutory authorization to infringe solicitor-client privilege
cannot be read-into or inferred from generally worded statutory
language. As alluded to by the Court, it also informs the
interpretation of s 38 of the Personal Information Protection
Act, SA 2003, c P-6.5, which contains an identically worded
provision that applies more broadly to "organizations"
(as opposed to a "public body" under FOIPPA). In
light of this decision, absent explicit statutory reform,
Alberta's privacy legislation does not permit the Commissioner
to compel and inspect records over which solicitor client privilege
Several practical steps are available to strengthen claims to
solicitor-client privilege. Clients would be well-served to involve
their legal counsel at the earliest possible stage where legal
privilege may be sought. Careful note-taking and marking
appropriate documents as solicitor-client privileged will make it
easier to assert the privilege should the need arise.
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.
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