SCC deals blow to privacy commissioner powers – privilege reigns supreme

28 Nov

Yesterday the Supreme Court of Canada issued a decision in which it held that the Information and Privacy Commissioner of Alberta does not have the power to compel the production of documents over which solicitor-client privilege is claimed in conducting an access inquiry under Alberta’s public sector access and privacy statute. 

The case – which arose out of an access request made to the University of Calgary – is a sequel to the 2008 Blood Tribe Department of Health case in which the Supreme Court of Canada made a similar finding regarding the Office of the Privacy Commissioner of Canada’s powers under the Personal Information Protection and Electronic Documents Act. Blood Tribe established that solicitor-client privilege cannot be abrogated by statutory language that is any less than “clear, explicit and unequivocal.” PIPEDA, however, is a unique statute. It establishes the OPC as an ombudsperson and not in adjudicator, and the power to produce that the OPC relied upon in Blood Tribe was drafted in the most general terms. Accordingly, Blood Tribe left a question about the powers of other privacy commissioners under more traditional statutes.

That question is now answered.

The Alberta Freedom of Information and Protection of Privacy Act gives the Alberta Commissioner the power to order production despite “any privilege of the law of evidence.” This phrase appears in a number of other public sector access and privacy statutes as does the similar phrase “any privilege under the law of evidence.” Ten privacy and access authorities therefore intervened in the University of Calgary case to argue in support of their mandates.

Nonetheless, a five judge majority held that the language of Alberta FIPPA is not clear enough to override solicitor-client privilege. The majority took pains to root its analysis in statutory interpretation principles, but its finding is best understood as reflecting a near absolute dedication to the supremacy of solicitor-client privilege. The majority also viewed the Alberta Commissioner as something less than an impartial adjudicator, alluding to the tradition by which information commissioners often act as parties in reviews of their own orders.

We must be careful in drawing broad conclusions about a finding under a particular access and privacy statute, but this decision will have a ripple effect. Commissioners across Canada may adjust their protocols for dealing with solicitor-client privilege claims and may lobby for statutory amendments. University of Calgary is a good news decision for institutions given the burden of arguing solicitor-client privilege claims on a record-by-record basis.

Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII).

Advertisements
%d bloggers like this: