Case Report – Newfoundland court says Privacy Commissioner can’t access documents subject to solicitor-client privilege

On February 16th, the Newfoundland Supreme Court – Trial Division, held that the Newfoundland Information and Privacy Commissioner cannot require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requester a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.” The Commissioner argued that section 52(3) allows it to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It made a purposive argument and also adduced text from a legislative committee report that suggested the Commissioner be granted a power of review that would operate “notwithstanding any law or privilege.”

The Court relied on the long line of jurisprudence that establishes solicitor-client privilege can only be abrogated by clear and unequivocal language, including the Supreme Court of Canada’s recent Blood Tribe decision. It held that reference to “a privilege under the law of evidence” is not clear indication that the legislature intended solicitor-client privilege to be infringed because solicitor-client privilege is an rule of evidence and a substantive legal right. It explained:

By the time the ATIPPA came into force, solicitor-client privilege had been broadened beyond a mere rule of evidence for more than twenty years. Section 52(3) refers only to “privilege under the law of evidence”. Again, this language is simply not expansive enough to capture the breadth of solicitor-client privilege as a substantive rule which the Supreme Court of Canada describes as a “fundamental civil and legal right”. The interpretation proposed by the Commissioner cannot be achieved by the words in section 52(3). To suggest otherwise would necessitate ignoring the evolution of the privilege as described by the Supreme Court of Canada.

The Court also held that the Commissioner’s power to review access decisions does not include a power to adjudicate solicitor-client privilege claims because such claims involve substantive rights that exist independently of the Act.

Hat tip to David Fraser.

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 31 (CanLII).

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