In a unanimous ruling issued on July 17, 2008, the Supreme Court
of Canada confirmed that the Privacy Commissioner of Canada cannot
order the production of documents over which a claim of
solicitor-client privilege is asserted.1 The Court ruled
that the right of the individual or organization "to keep
solicitor-client confidences confidential must prevail."
This decision clarifies the scope of the Commissioner's
investigatory power. In short, the Personal Information
Protection and Electronic Documents Act ("PIPEDA")
does not grant the Commissioner authority to compel production of
privileged documents, even for the limited purpose of determining
whether privilege is properly claimed.
Following her dismissal, an employee of the Blood Tribe
Department of Health asked to review her personal employment
information. The employer denied the request and the employee filed
a complaint with the Commissioner. The Commissioner, in turn,
requested a copy of the employee's file. The employer provided
all records save for a "bundle of letters" over which a
claim of solicitor-client privilege was advanced. The Commissioner
ordered the production of the withheld documents on the basis that
such production was necessary to verify the claim of privilege. The
employer challenged the legality of the order and the case was
heard by the Federal Court.
The Federal Court considered the relevant paragraphs of PIPEDA
and, adopting a broad and purposive interpretation of the
legislation, concluded that the Commissioner did have the
extraordinary power to review documents for privilege. However, the
Federal Court of Appeal unanimously overturned this decision.
Writing for the Court of Appeal, Justice Malone concluded that
solicitor-client privilege was presumptively inviolate and that no
exception to it was disclosed in PIPEDA.
THE SUPREME COURT OF CANADA'S DECISION
In a unanimous decision, the Supreme Court of Canada agreed with
the Federal Court of Appeal and affirmed that PIPEDA does not grant
the Commissioner the power to compel production of privileged
IMPLICATIONS OF THE RULING
It is now clear that the Commissioner does not have the
authority to order the production of privileged documents even for
the purpose of verifying a privilege claim. Although the ruling
does preclude the Commissioner from ordering production of
privileged documents, the Court has recognized that there are,
nonetheless, less intrusive remedies available to the Commissioner
for purposes of ensuring the propriety of privilege claims. The
Commissioner may, for example, at any point in the investigation,
refer a question of solicitor-client privilege to the Federal
Court. At such time, the Court is empowered, if it thinks it
necessary, to review the contested material and determine whether
solicitorclient privilege has been properly claimed.
The Commissioner has taken the position that such remedies are
insufficient and argues that the decision leaves a "gap"
in the ability of the Commissioner to discharge the
Commissioner's legislative mandate and potentially allows broad
claims of solicitor-client privilege to inhibit
investigations.2 This position was clearly rejected by
the Supreme Court of Canada. It remains to be seen whether
Parliament will consider amending PIPEDA in an effort to grant the
Commissioner the sought-after power to compel production of
privileged documents, or whether it will take to heart the Supreme
Court of Canada's view that granting the Commissioner the power
to review documents for privilege is unnecessary for purposes of
achieving the ends sought by PIPEDA.
At a practical level, corporations which have previously
forwarded privileged documents to the Commissioner should consider
requesting that any improperly compelled documents be returned.
1. Privacy Commissioner of Canada v. Blood Tribe
Department of Health, 2008 SCC 44.
2. Office of the Privacy Commissioner of Canada, News
Release, "Supreme Court of Canada to consider Privacy
Commissioner's powers of investigation and enforcement"
(21 February 2008).
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