Canada: Privacy Commissioner´s Powers Do Not Extend To Inspecting Or Compelling Production Of Solicitor-Client Privileged Records

The Supreme Court of Canada ruled in Canada (Privacy Commissioner) v. Blood Tribe Department of Health that the Federal Privacy Commissioner does not have the right to compel and inspect documents over which solicitor-client privilege has been claimed.

An employee of the Blood Tribe Department of Health requested access to her personnel file, after she was dismissed from her employment. She suspected that her employer had improperly collected inaccurate information and used it to discredit her before the department's board of directors. When the employer denied her access, the employee filed a complaint with the Privacy Commissioner and the Commissioner demanded access to the employment information. The employer supplied the relevant documents to the Commissioner except for correspondence between the employer and its solicitors, over which it claimed solicitor-client privilege.

The Commissioner ordered the production of the solicitor-client documents, relying on Section 12 of the Personal Information Protection and Electronic Documents Act (PIPEDA). That provision permits the Commissioner to compel the production of any records to facilitate the investigation of a complaint and to "receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law..."

The employer sought judicial review of the order, but the reviewing judge concurred with the Commissioner. The employer then appealed to the Federal Court of Appeal, which allowed the appeal and vacated the Commissioner's order. The Commissioner's appeal to the Supreme Court of Canada (SCC) was dismissed.

The SCC determined that the Commissioner's authority under Section 12 does not include the power to compel documents over which solicitor-client privilege is claimed — even for the limited purpose of evaluating the veracity of the claim. That role, the court said, was reserved for courts of law. Since solicitor-client privilege is "fundamental to the proper functioning of our legal system," it could only be abrogated by explicit statutory language, and PIPEDA contains no such language.

The Commissioner had argued that such a ruling would allow organizations to hide damaging records under the guise of a privilege claim. However, the SCC noted that there are two statutory means to verify that the privilege claim: the Commissioner can refer a question of solicitor-client privilege to the Federal Court, or she can bring an application to the Federal Court after reporting an impasse over privilege. The court could then order the production of the documents and inspect them to determine the veracity of the claim.

McCarthy Tétrault Notes:

As a result of the SCC ruling, solicitor-client privilege disputes between organizations and the Commissioner under PIPEDA will likely be resolved through reference to the Federal Court.

A Parliamentary Committee, in response to the earlier Federal Court of Appeal decision, recently recommended that PIPEDA be amended to provide for an expedited Federal Court review mechanism for privilege disputes. This proposal has not yet been enacted, but it would comport with the SCC's analysis and statutorily entrench the result of this case.

The decision's result of requiring disputes over solicitor-client privilege under PIPEDA to be resolved judicially provides protection for organizations that could otherwise be susceptible to an overzealous and intrusive Commissioner releasing their privileged documents. Even if the Commissioner agreed that a record was privileged, he or she could turn it over to the government in some cases (if the Commissioner believed it disclosed evidence of a crime). Or, if the Commissioner erroneously felt that the privilege claim was unjustified, he or she could order the document be provided to a third party. This ruling prevents these possibilities.

In addition to restricting the Commissioner's powers, this decision may impact the activities of other administrative regulators. By extension, officials and bodies operating under other statutes may be similarly prohibited from compelling production of solicitor-client privileged documents absent explicit statutory language. Currently, approximately 14 other federal statutes contain substantially similar wording to PIPEDA's investigatory powers section, including the Public Service Employment Act, Employment Equity Act and Canadian Security Intelligence Service Act.

Should Parliament ever consider reversing the decision, it could add a clause to PIPEDA similar to that included in British Columbia's private sector privacy legislation, the Personal Information Protection Act (PIPA). PIPA specifically provides that all documents requested by the B.C. Commissioner must be produced, regardless of any privilege claim, allowing the Commissioner to determine whether privilege was properly claimed.

That said, even PIPA provision may now be open to challenge. The specific operative language of the statute does not refer to "solicitor-client privilege" explicitly, but rather to "any privilege afforded by the law of evidence..." In Blood Tribe, the SCC indicated that solicitor-client privilege has such importance in the legal system that it has moved beyond a mere rule of evidence.

Because PIPA does not explicitly mention solicitor-client privilege, it might be argued that the B.C. Commissioner also cannot force disclosure of documents over which solicitor-client privilege is claimed.

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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