The Supreme Court of Canada is revisiting the issue of whether a
privacy commissioner can force disclosure of documents where
solicitor-client privilege is asserted.
In 2008, the Supreme Court considered a privacy
commissioner's powers under Canada's federal private sector
legislation and concluded (in Canada (Privacy Commissioner) v.
Blood Tribe Department of Health, 2008 SCC 44) that the federal privacy
commissioner could not compel the production of documents over
which privilege is asserted . This time around, the court is
examining the privacy commissioner's powers under provincial
privacy legislation, which has language that differs from that
found in the federal privacy legislation.
On Oct. 29, 2015, Canada's top court granted leave to appeal in University of
Calgary v JR, 2015 ABCA 118. In that decision, the Alberta
Court of Appeal reversed the lower court's order that documents
be produced to the Privacy Commissioner by the university
notwithstanding that the university asserted privilege over them.
That decision was detailed in McCarthy Tétrault's
Canadian Appeals Monitor
JR had sued the University for wrongful dismissal and other
causes of action. In the course of the litigation, JR made an
access to information request under section 7 of the province's
Freedom of Information and Protection of
Privacy Act, R.S.A. 2000, c. F-25
("FOIPPA"). The University disclosed some, but not all,
of the records, withholding records it asserted were subject to
solicitor-client privilege. Following unsuccessful mediation, the
Alberta Privacy Commissioner commenced a formal inquiry through an
appointed delegate into whether the University was exempt from
producing the outstanding documents. The Commissioner's
delegate ordered production of certain records so the Commissioner
could determine the propriety of the University's claim that
those records were subject to solicitor-client privilege. The
delegate's decision was then judicially reviewed.
Central to the consideration at both levels of court was the
statutory interpretation of section 56(3) of FOIPPA, which
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 Alberta Court of Queen's Bench found that the plain
meaning of the provision gave the Commissioner the power to compel
the records. However, the Court of Appeal applied the Supreme
Court's reasoning in Blood Tribe to determine the
Commissioner or her delegate cannot order a public body to produce
records over which it has asserted solicitor-client privilege. The
Supreme Court will now consider the issue.
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