On July 17, 2008 the Supreme Court of Canada released its unanimous decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health. The Supreme Court upheld the Federal Court of Appeal's decision to vacate an order by the Privacy Commissioner compelling the production of purportedly privileged material so as to assess the privilege claim. This ruling reaffirms the sanctity of privilege and the Canadian judiciary's willingness to protect the doctrine from unnecessary or unfounded legislative erosion. More broadly, it represents a significant hurdle for administrative and regulatory bodies seeking to compel documentary production of privileged materials in the context of investigations or other administrative undertakings.
A former employee of the Blood Tribe Department of Health (the Department) requested access to her employment file under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA). That statute governs the use, collection and disclosure of personal information by private sector organizations. Subject to certain exceptions, PIPEDA provides individuals with a right of access to their personal information. Although the former employee's file was ultimately provided to her after she filed a complaint with the Privacy Commissioner, the Department withheld from production certain correspondence between itself and its outside legal counsel, claiming such documents were protected by solicitor-client privilege.
In response, the Privacy Commissioner ordered the Department to produce the privileged documents, purportedly for the purposes of assessing the privilege claim. In so ordering, the Privacy Commissioner sought to rely on subsections 12(1)(a) and (c) of PIPEDA. Those subsections permit the Commissioner to conduct an investigation concerning a complaint, summon and enforce the appearance of, and compel the production of records from, a person "in the same manner and to the same extent as a superior court of record." In addition, the Commissioner is empowered to receive and accept any evidence and other information, regardless of its admissibility in court.
The Department challenged the Commissioner's order by application for judicial review to the Federal Court. The issue before the court was whether the federal Privacy Commissioner was lawfully entitled to order production of documents over which a claim of solicitor-client privilege had been asserted by counsel for the Department in response to the applicant's complaint brought under PIPEDA. The Privacy Commissioner purported to seek production of the privileged materials for the purpose of assessing the underlying claim of privilege itself.
The Federal Court dismissed the Department's application; but, the Federal Court of Appeal allowed an appeal, set aside the decision of the Federal Court and vacated the Commissioner's order to produce the privileged documents. The Privacy Commissioner appealed the ruling of the Federal Court of Appeal. In unanimously dismissing that appeal, the Supreme Court of Canada ruled that "legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpreted restrictively." The Court concluded that, given the absence of express statutory language granting the Privacy Commissioner the power to review documents in respect of which solicitor-client privilege is claimed, the fundamental issue between the parties concerned the extent to which PIPEDA implicitly bestowed such a power of inspection.
The Supreme Court ruled that PIPEDA did not provide the Privacy Commissioner with the requisite jurisdiction or statutory powers to compel production of privileged materials, even for the limited purpose of assessing the privilege claim. In so ruling, the Court reiterated its strong stance on the need to protect solicitor-client privilege from state and regulatory legislative incursion to ensure "the proper functioning of our legal system."
The Privacy Commissioner had relied heavily on the statutory characterization of her powers as being "in the same manner and to the same extent as a superior court of record." She used this phrase to analogize her power to that of a superior court which has the ability to inspect documents over which a claim of privilege has been asserted. In ultimately rejecting this analogy, the Supreme Court noted that a client would consider compelling disclosure to an administrative officer an infringement of confidentiality, especially where (as in this case) the privileged information may be "made public or used against the person entitled to the privilege."
The Supreme Court also observed that the Privacy Commissioner may ultimately become adverse in interest to the party whose documents are at issue, which further militated against an implicit statutory power to compel production of privileged information. Moreover, the Court cited the alternative mechanisms available to the Privacy Commissioner to assess privilege claims, both within the statutory scheme of PIPEDA and by reference to the Federal Court of Canada.
Craig T. Lockwood is an associate in the Litigation Department of Osler, Hoskin & Harcourt's Toronto office.
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