Case Report – Federal Court says OPC can’t demand evidence supporting a privilege claim

29 Apr

On April 20th, the Federal Court issued an order in a PIPEDA application about an access request and a solicitor-client privilege claim made by Air Canada. For the most part, the Court held that Air Canada’s privilege claim was justified. In doing so, it held that the Privacy Commissioner did not have the power to compel Air Canada to justify its claim by filing an affidavit.

Although the burden rests with Air Canada to justify its allegation of privilege, it is this Court, and not the Privacy Commissioner, who is the decision maker. Air Canada could have refused without giving any particulars whatsoever. The Privacy Commissioner would then have had to seek one of the many avenues of redress to this Court which are available to her. In such a case, even if it turned out that Air Canada’s refusal was not capricious, and that the documents were privileged, Air Canada might face serious cost consequences for unnecessarily taking up the Court’s time.

Of course, the Privacy Commissioner had the right to inform Air Canada that if it did not persuade her that its assertion was well founded, she would come to this Court, as indeed she has. However, since she could not make a decision, it follows that she could not stipulate the steps Air Canada had to take to satisfy her that the documents were truly privileged.

The remainder of the decision is more driven by facts, though the Court did make a notable finding that an incident report – prepared by employees and forwarded to the company’s legal department as a matter of procedure – was subject to both solicitor-client and litigation privilege. The Court also declined to award damages for the one part of Air Canada’s privilege claim that it did not uphold.

Privacy Commissioner of Canada v. Air Canada, 2010 FC 429 (CanLII).

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