Supreme Court of Canada Ruling: Alberta’s Information and Privacy Commissioner Cannot Order Disclosure to Verify a Claim of Solicitor-Client Privilege

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP. 

On November 25, 2016, the Supreme Court of Canada rendered its decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, ruling on the Alberta Information and Privacy Commissioner’s power to compel production of records which the University had refused to disclose, on the basis of solicitor-client privilege.

Ultimately, the majority of the Court found that the language contained in Section 56(3) of Alberta’s Freedom of Information and Protection of Privacy Act (FOIPPA) – which obliges a public body to produce required records to the Alberta Information and Privacy Commissioner “[d]espite … any privilege of the law of evidence” – is not clear enough to override solicitor-client privilege. Citing the case of Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, in which the Supreme Court of Canada made a similar finding in the context of the federal Personal Information Protection and Electronic Documents Act, the majority held that:

 [S]olicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection.

As such, it was concluded that solicitor-client privilege is not captured by the expression “any privilege of the law of evidence,” and thus Section 56(3) of FOIPPA “does not require a public body to produce to the Commissioner documents over which solicitor-client privilege is claimed.”

This decision affirms the importance of solicitor-client privilege to the legal system as a whole, and especially in the context of interactions with privacy and access authorities. While this is likely a welcome outcome for public bodies that bear the burden of arguing solicitor-client privilege claims over their records, caution must be exercised in applying this finding too broadly, as the language prescribed in other privacy and access statutes may vary from that contained in FOIPPA and thus, be subject to different judicial interpretation.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.