Following this decision, and as discussed in our August 2012
Blakes Bulletin: Alberta Privacy Commissioner Upholds Privilege in
Access Decision, the OIPC took the position that, due to
fundamental differences with federal privacy legislation, it was
nonetheless empowered under both Alberta's private and public
sector privacy legislation to order production of solicitor-client
privileged records to verify the claim of privilege. To this end,
the OIPC issued its Solicitor-Client Privilege Adjudication
Protocol to guide organizations that wished to assert
solicitor-client privilege in information privacy disputes.
University of Calgary v. JR was the first court case to
challenge the Alberta OIPC's power to compel production of
records for which solicitor-client privilege has been claimed. This
case arose in the context of a request by a former employee for
access to personal information about her in the possession of the
University of Calgary. When the University of Calgary declined to
provide un-redacted copies of the records for which
solicitor-client privilege had been claimed for the OIPC's
review, the OIPC issued a "notice to produce records" on
the basis of sections 56(2) and (3) of FOIPPA. Section 56(3)
provides that a public body must produce to the OIPC any record
requested despite "any privilege of the law of
The Alberta Court of Appeal found that, in order to refute the
presumption that the legislature does not intend to authorize the
infringement of solicitor-client privilege, statutory language must
be clear, explicit and specific. At paragraph 48, the court
explained: "That is, it requires language which is absolutely
clear, such that the underlying legislative intent is completely
explicit. This requires specific reference to solicitor-client
The Alberta Court of Appeal found that the language of section
56(3) of FOIPPA was not sufficiently clear, explicit and specific
to authorize the Commissioner to order production of records over
which a public body has asserted solicitor-client privilege. To
hold otherwise would require an "impermissible inference"
that the general direction to produce records "despite . . .
any privilege of the law of evidence" implicitly includes
The SCC ruling represents a unique opportunity for Canada's
highest court to finally and definitively rule on the power of
provincial information and privacy commissioners to order
production of records over which an organization has asserted
solicitor-client privilege, as it did for the federal Privacy
Commissioner in the Blood Tribe decision. As such, the
outcome of the appeal of University of Calgary v. JR
should be of critical interest to counsel, the courts and privacy
commissioners across Canada.
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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