Canada: Privileged Records And Access To Information Reviews: To Produce Or Not Produce?

INTRODUCTION

Solicitor-client privilege is intended to foster candid conversation between a client and legal counsel in order to ensure that the client receives appropriate legal advice and can make informed decisions. It protects the solicitor-client relationship. By comparison, litigation privilege attaches to records that are created for the dominant purpose of preparing for litigation. It offers protection for clients to investigate and prepare their case. Both privileges are vital to an effective legal system.

Enter access to information legislation. Legislation in each Atlantic province provides some form of exception to disclosure for privileged records.¹ But a public body's application of access to information legislation is overseen by a statutory office in every jurisdiction. What happens when the public body's application of the exception for privileged records is challenged?

THE LEADING DECISIONS

That question gave rise to the Supreme Court of Canada's well-known decision in Alberta (Information and Privacy Commissioner) v University of Calgary.² In that case, a delegate of the Alberta Information and Privacy Commissioner issued a notice to the University to produce records over which the University had claimed solicitor-client privilege. The University in turn challenged the Commissioner, and argued that it was not obliged to produce such records. The dispute worked its way through the courts, and eventually landed on the doorsteps of the Supreme Court. The majority of the Court agreed with the University and determined that the University was not obligated to produce solicitor-client privileged records to the delegate for review.

The Supreme Court's decision was based upon statutory interpretation, and depended greatly on the specific wording of the Alberta Freedom of Information and Protection of Privacy Act. The Alberta legislation requires a public body to produce records to the Commissioner despite "any privilege of the law of evidence." ³ But the Supreme Court determined that production of records under access to information legislation engages solicitor-client privilege as a substantive right – not in the evidentiary context. Case law has long affirmed that as a substantive right, solicitor-client privilege "must remain as close to absolute as possible and should not be interfered with unless absolutely necessary".⁴ Therefore, the Court determined that the requirement to produce records despite "any privilege of the law of evidence" was not "sufficiently clear, explicit and unequivocal to evince legislative intent to set aside solicitor-client privilege." ⁵ This interpretation was found to be consistent with the scheme of the legislation. A similar approach was subsequently taken by the Court with respect to litigationprivileged records in Lizotte v Aviva Insurance Company of Canada. The Court noted that like solicitor-client privilege, a statute must contain "clear, explicit and unequivocal language" in order to lift litigation privilege.⁶

THE IMPLICATIONS FOR ATLANTIC CANADA

The implications of these decisions on access and privacy law in Atlantic Canada remains to be seen. The legislation describing the Commissioners' powers of production varies across the Atlantic provinces. As a result, the analysis in each jurisdiction requires a nuanced consideration of the language and the scheme of the legislation in issue in order to determine if the Commissioner does have the ability to require production of records over which solicitor-client or litigation privilege is claimed. Public bodies should be mindful of the need for the legislation to use language that is sufficiently clear, explicit and unequivocal, to set aside the privilege. But perhaps more importantly, is the question of whether a Commissioner ought to request records for which solicitor-client privilege or litigation privilege is claimed.

The University of Calgary decision received a great deal of attention when it was released. But little attention has been paid to the Majority's closing comments regarding the appropriateness of the delegate's decision to seek production of records over which solicitor-client privilege was claimed – in the event the delegate could require their production. In this respect, the Supreme Court emphasized that "even courts will decline to review solicitor-client documents to ensure that privilege is properly asserted unless there is evidence or argument establishing the necessity of doing so to fairly decide the issue." ⁷ The Court was mindful of the fact that the University had identified the records in accordance with the practice in civil litigation in the province, and found that in the absence of evidence to suggest that the University had improperly claimed privilege, the delegate erred in determining that the documents had to be reviewed.

This commentary suggests that even if Commissioners in Atlantic Canada have the authority to require production of records over which solicitor-client privilege is claimed, an exercise of that authority may not always be appropriate. Similar commentary regarding review of litigation privileged records has not been provided from our top Court. However, it is arguable based on the strength of the Supreme Court's decision in Lizotte, that a similar approach could be expected should the issue be considered. At least one Information and Privacy Commissioner in Canada - the Alberta Information and Privacy Commissioner who was bound by the decision in University of Calgary - has issued a practice note that treats the privileges the same on review and requires affidavit evidence attesting to why the records are solicitor-client or litigation privileged. This is based upon civil litigation practice in Alberta.⁸

THE TAKE-AWAY

While civil litigation practice can – and does – vary from province to province, should you find yourself in a positon where the Commissioner is seeking review of records over which you have claimed solicitor-client or litigation privilege, the Supreme Court's commentary and the Alberta approach may provide a means by which to have the Commissioner resolve the claim without risking privilege and requiring production of the records in issue.

A special thank you to Sarah Byrne, Summer Student, for her research assistance.

Footnotes

1 In New Brunswick, see The Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6 at s 27; in Newfoundland and Labrador, see Access to Information and Protection of Privacy Act, 2015, SNL 2015 c A-1.2 at s 30; in Nova Scotia, see Freedom of Information and Protection of Privacy Act, SNS 1993, c 5 at s 16; and in Prince Edward Island, see Freedom of Information and Protection of Privacy Act, RSPEI 1988, c 15.01 at s 25.

2 [2016] 2 SCR 555, 2016 SCC 53 (CanLII).

3 Ibid, at s 56(3).

4 Ibid, at para 43, internal citations omitted.

5 Ibid, at para 44.

6 [2016] 2 SCR 521, 2016 SCC 52 (CanLII) at para 64.

7 Supra, note 2 at para 68.

8 By comparison, on subsequent review of the Commissioner's decision respecting a claim for privilege, it is likely that the Court will exercise its powers of oversight and view the records over which solicitorclient privilege is claimed. See for instance: Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2018 ABCA 114 (CanLII).

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.