The Supreme Court of Canada has rejected the Canadian
Privacy Commissioner's attempt to expand her mandate to
include testing solicitor–client privilege claims. In
Canada (Privacy Commissioner) v. Blood Tribe Department of
Health, released July 17, 2008, the Supreme Court held
that the Commissioner does not have the power to review
documents to determine whether they are in fact privileged.
That role remains reserved for the courts.
The case involved the Commissioner's investigation
into a privacy complaint. An ex-employee had requested that her
former employer provide her with access to her personal
information under the Personal Information Protection and
Electronic Documents Act (PIPEDA). The ex-employee was
ultimately provided with all requested documents except those
over which solicitor–client privilege was claimed.
PIPEDA provides that organizations are not required to give
access to personal information that is protected by
solicitor–client privilege. Despite this exemption,
and a proper assertion of privilege by the employer, the
Privacy Commissioner ordered the employer to produce the
privileged documents for review. The Commissioner took an
expansive view of her statutory mandate, asserting that she had
the power to review privileged documents in order to ensure
compliance with PIPEDA.
Supreme Court's Decision
The Supreme Court unanimously held that PIPEDA does not
authorize the Privacy Commissioner to review or compel
production of documents over which solicitor–client
privilege is claimed. The Court rejected the
Commissioner's argument that the Commission was
analogous to a court, which has the authority to adjudicate
privilege claims. The Supreme Court held that the Privacy
Commissioner is an investigator, not an adjudicator. Further,
the Privacy Commissioner, in pursuit of her mandate, can become
adverse in interest to the party whose documents she seeks to
access. The Court held that if the Privacy Commissioner wishes
to challenge a claim for privilege, she must refer the issue to
a court, a process that is permitted under PIPEDA.
This decision is the latest in a long line of Supreme Court
of Canada cases re-affirming the importance of
solicitor–client privilege. The Supreme Court also
identified 14 other federal statutes that have substantially
identical wording to provisions that the Privacy Commissioner
relied on in PIPEDA. This Supreme Court decision should prevent
the abrogation of privilege in those administrative regimes as
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