British Columbia OIPC beats bold challenge to jurisdiction to adjudicate privilege claims

On March 23rd, the Supreme Court of British Columbia held that the British Columbia Freedom of Information and Protection of Privacy Act empowers the British Columbia OIPC to adjudicate questions of solicitor-client privilege for the purpose of determining whether government records are exempt from the right of public access.

In rendering this jurisdictional decision, the Court stressed that the OIPC has the power to adjudicate, including the power to “decide all questions of fact and law arising in the course of an inquiry.” It also rejected an argument that the legislature could not have intended a “lay tribunal” to adjudicate privilege claims and an argument that the OPIC’s power to report information about offences to the Attorney General weighed against a power to adjudicate on privilege.

In the end, the Court held that the OIPC erred in rejecting part of the institution’s privilege claim because the institution had not adduced any evidence to establish that certain records were privileged. The request was for records about the expenditure of legal fees. The Court held that the responsivness of the records was sufficient to create a rebuttable presumption of privilege.

School District No. 49 (Central Coast) v. British Columbia (Information and Privacy Commissioner), 2012 BCSC 427 (CanLII).

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