SCC deals blow to privacy commissioner powers – privilege reigns supreme

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).

Case Report – Div. Court issues significant decision on Ontario FOI exclusions

On March 26th the Divisional Court issued a significant decision on the Information Privacy Commissioner/Ontario’s jurisdiction to oversee claims that records are excluded from public access.

The requester asked the Ministry of the Attorney-General for access to records concerning the handling and progress of a high-profile prosecution. The MAG claimed the records requested were excluded by section 65(5.2) of FIPPA, which states, “This Act does not apply to records relating to a prosecution if all proceedings in respect of the prosecution have not been completed.”

The IPC routinely asks for the records subject to both exclusion and exemption claims, though this practice may be in some flux with respect records claimed to be subject to solicitor-client privilege since the Supreme Court of Canada’s Blood Tribe decision. In this case, when the MAG did not produce records voluntarily, the IPC ordered it to: (1) produce responsive records except those “clearly” subject to a solicitor-client privilege claim; (2) make exemption claims in the alternative to its exclusion claim; (3) prepare and produce an index of records; and (4) provide an affidavit in support of solicitor-client privilege claims.

Though the order was an interim order, the Court decided to hear the MAG application for judicial review. It held that the IPC erred in interpreting the scope of 65(5.2) and made an unreasonable order.

The section 65(5.2) decision is particularly significant given the Court’s finding that IPC erred in reading the words “relating to” as requiring a “substantial connection.” It said:

The meaning of the statutory words “relating to” is clear when the words are read in their grammatical and ordinary sense. There is no need to incorporate complex requirements for its application, which are inconsistent with the plain unambiguous meaning of the words of the statute.

The Adjudicator’s interpretation of the phrase “relating to” is also discordant with the intention of the Legislature. There are no pragmatic or policy reasons to impute a substantial connection requirement and depart from reading the words in their grammatical and ordinary sense in the context of the Act.

The IPC also applies the substantial connection test in adjudicating the employment records and teaching and research records exclusions. Though the language of these exclusions is slightly different than the language of section 65(5.2), the Court’s reasoning casts doubt on the use of the substantial connection test across-the-board.

The Court did not make a finding on whether IPC has the power to order the production of records that are claimed to be excluded nor did it opine on the scope of any such jurisdiction. It simply held that the IPC’s order was unreasonable because it would interfere with the interests the section 65(5.2) exclusion was intended to protect. Its disposition, however, suggests that looking at records claimed to be excluded is not necessary. Rather than send the matter back to the IPC, the Court simply declared that the request was for excluded records and could be brought back on when the underlying prosecution is complete. It did so on the face of the request.

Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII).

Case Report – Ontario’s top court affirms order granting compelled observation of surgery

Today, the Ontario Court of Appeal held that investigators appointed under the Ontario Health Professions Procedural Code have the power to compel observation of surgery conducted by an investigated physician and the power to compel an individual physician under investigation to submit to an interview.

Registrars of the self-regulating colleges may appoint investigators to look into whether a member has committed an act of misconduct or is incompetent. They must report the results of an investigation to a committee which, in turn, decides whether to proceed with discipline or incompetence charges in accordance with the procedures outlined in the Code. Investigators enjoy the following grant of power:

An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

Last September, the Divisional Court held that the power to “inquire into and examine,” interpreted purposively, allowed for compelled observation of surgeries. It stressed that the College’s evidence showed observation is an effective, customary and even necessary process for assessing a health care practitioner’s competence. It held that the grant of power in the Code was unambiguous, so there was no scope for interpreting it narrowly to conform with Charter values that weigh against self-incrimination and unreasonable search.

The Court of Appeal fully endorsed the Divisional Court’s reasoning and made clear that the power to compel observation of surgery applies notwithstanding recent amendments to the Code. Its reasoning stressed that the plain meaning of the words “inquire into and examine” and the purpose of the self-regulatory enactment outweighed any narrowing inference about legislative intent that might be drawn from the other text in the Code. It rejected the appellants’ argument that the Divisional Court erred in failing to consider the entire legislative context, and said, “…it would take clear words to deprive the investigator of powers necessary to carry out this important public interest [in effectively regulating the medical professions].”

Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546.