Canada: Solicitor-Client Privilege Wins Again Court Of Appeal Endorses Restrictive Statutory Interpretation In University Of Calgary v JR

The privileged position that solicitor-client privilege occupies in our legal system was recently reiterated and reinforced in the context of access to information requests in University of Calgary v JR. On April 2, 2015, the Alberta Court of Appeal considered the authority delegated to the Office of the Information and Privacy Commissioner ("OIPC") as it went head to head against solicitor-client privilege.1


In University of Calgary v JR, the Court of Appeal considered the appeal from a chambers judge's decision ruling in favour of the OIPC regarding its demand that the University to produce records over which it asserted privilege, pursuant to an access to information request made by JR in 2008.2

JR had commenced a wrongful dismissal claim in 2008 against the University, which was eventually resolved in JR v University of Calgary by the Court of Queen's Bench in 2012.3 At the same time, JR had also made an access to information request pursuant to s. 7 of the Alberta Freedom of Information and Protection of Privacy Act ("FOIPPA"). In the request, JR sought all relevant emails, file information, letters, records of discussion, third party correspondence, personal notes, and internal meeting notes in the University's possession. The University disclosed some documents, but withheld certain records on the basis that they were protected by solicitor-client privilege.

Office of the Information and Privacy Commissioner

The Information and Privacy Commissioner (the "Commissioner") commenced a formal inquiry, appointing a delegate with inquiry powers pursuant to s. 61 of FOIPPA. In the course of this inquiry, the University was asked to produce unredacted copies of the requested records over which it was asserting privilege, for the purpose of verifying the claim of privilege. The delegate invoked s. 56 of FOIPPA in issuing a "notice to produce records", 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..."

The University sought judicial review of the delegate's decision to issue the notice to produce.

Court of Queen's Bench

The chambers judge found that the plain meaning of s. 56 allowed the Commissioner to compel the production of records, despite the privilege asserted by the University. The University appealed the decision, arguing that the chambers judge erred in interpreting s. 56 of FOIPPA as empowering the Commissioner to compel production of records over which solicitor-client privilege is asserted. The Law Society of Alberta also intervened at the Court of Appeal, submitting similarly that a contextual interpretation of s. 56 would take into account the importance of solicitor-client privilege in our legal system.

Court of Appeal

The sanctity and fundamental importance of solicitor-client privilege in the Canadian legal system is undeniable and was undisputed in this case; the presumption with regard to solicitor-client privilege is that the protected information lies beyond the reach of all others, including the state.4 The essential issue for the Court of Appeal was whether, in enacting s. 56, the legislature intended to displace this common law principle. The Commissioner's position was that FOIPPA had clearly delegated the ability to collect the records at issue and assess the privilege claimed; the University's position was that the Commissioner did not have the authority it claimed to possess.

In determining whether the legislature had intended to displace solicitor-client privilege in s. 56 of FOIPPA, the Court of Appeal discussed the applicable principles of statutory interpretation at length. It held that because of the central and fundamental importance of solicitor-client privilege to our legal system, and the necessity of preserving the solicitor-client relationship that is integral to the administration of justice, any statute that may be interpreted as trenching on that privilege must be interpreted restrictively.5

The Court considered the Supreme Court of Canada decision in Canada (Privacy Commissioner) v Blood Tribe Department of Health and found that it ousted the modern, purposive approach to statutory interpretation in cases where the legislation could be interpreted to trench on principles of privilege.6 Not only did the Court of Appeal reject the ubiquitous "modern approach to statutory interpretation" in cases where solicitor-client privilege is at issue, but it also rejected the middle ground of using the restrictive interpretation as a "presumption of last resort", as had been endorsed by the Supreme Court of Canada in certain cases.7

Applying the restrictive interpretation to the present case, because s. 56 of FOIPPA failed to clearly and explicitly discuss abrogation of solicitor-client privilege, it could not be interpreted to provide the Commissioner or the delegate to order a public body to produce records over which solicitor-client privilege was asserted. The Court of Appeal commented on a few other considerations that strongly militated against an interpretation that would allow disclosure in the case at bar: (i) neither the Commissioner or the delegate must be a lawyer, and as a result may lack the expertise necessary to evaluate claims of privilege; (ii) records disclosed to the Commissioner may be further disclosed in certain circumstances to the Minister of Justice and Solicitor General; and (iii) the language of s. 56, in using the word "organization", would include law firms.8


University of Calgary v JR is another strong reaffirmation of the essential nature of solicitor-client privilege in our legal system, and a message to legislators and governmental bodies: in order for a statute to authorize infringement of privilege, its language must be abundantly clear. The Alberta Court of Appeal and the Supreme Court of Canada have both endorsed an extremely restrictive interpretive approach to legislation where privilege is at stake. At its core, the University of Calgary v JR decision is a statement by the court that threats to solicitor-client privilege will be carefully evaluated and interpreted, in order to ensure that this key legal principle enjoys the highest level of protection possible. The importance of solicitor-client privilege is such that a legislature may not abrogate it by mere inference.

As information and privacy legislation continues to evolve across Canada, businesses and legislators alike should pay careful attention to the wording of statutes that may infringe on various types of common law privilege. However, the University of Calgary v JR decision demonstrates that, absent clear and unambiguous wording, the courts will continue to uphold the sacrosanctity of privilege in our legal system.

*Kim Macnab is an articling student at the McCarthy Tétrault Calgary office.

Case Information

University of Calgary v JR, 2015 ABCA 118

Docket: 1301-0368-AC

Date of Decision: April 2, 2015


1 University of Calgary v JR, 2015 ABCA 118 [JR].

2 University of Calgary v JR, 2013 ABQB 652.

3 JR v University of Calgary, 2012 ABQB 342.

4 JR at para 26.

5 JR at para 40.

6 JR at paras 38-40, citing Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574 at paras 2, 18, 25-26.

7 JR at para 28, distinguishing Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24 and Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, [2002] 2 SCR 559.

8 JR at para 50.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.