In a surprising decision, a majority of the Supreme Court of Canada held that solicitor-client privilege may only be set-aside by statutory language that demonstrates a clear and unambiguous legislative intent to do so. In Alberta (Information and Privacy Commissioner) v. University of Calgary (November, 2016), the issue was whether the Alberta Information and Privacy Commissioner (the “Commissioner”) had the authority to order the production of records that were claimed to be solicitor-client privileged in order to determine whether the claim of privilege was properly asserted. The Commissioner argued that section 56(3) of the Alberta Freedom of Information Protection of Privacy Act (“FOIPP”) provided such authority by requiring production of records to the Commissioner despite “any other enactment or any privilege of the law of evidence”. The Supreme Court however rejected the Commissioner’s interpretation of the legislation. It held that solicitor-client privilege is a substantive right that is fundamental to the proper functioning of the legal system, and is therefore more than a mere privilege of the law of evidence. As such, any legislative language that purports to set-aside or infringe solicitor-client privilege must do so expressly.
The facts giving rise to the case began with a constructive dismissal claim against the University of Calgary (the “University”). The plaintiff in that action sought access to records held by the University. The University disclosed some of the responsive records but refused to disclose other records on the basis that they were protected by solicitor-client privilege. The former employee brought an application under FOIPP seeking disclosure of the withheld documents. A delegate of the Commissioner made inquiries relating to the University’s claim of solicitor-client privilege and eventually sought to verify the claim. The delegate ordered the University to produce the records pursuant to section 56(3) of FOIPP, which states:
(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).
The University sought judicial review of the order arguing that the Commissioner did not have the authority to compel disclosure of records that were solicitor-client privileged. At the trial level, the judge held that FOIPP did provide such authority to the Commissioner, and that the authority was properly exercised in the case at hand. This decision was overturned by the Alberta Court of Appeal. That Court held that the statutory language in FOIPP required an inference that solicitor-client privilege was a “privilege of the law of evidence”. As such, the legislative language was not sufficiently clear to oust the claim of solicitor-client privilege.
The Commissioner appealed that decision, but Canada’s top court agreed with the Alberta Court of Appeal. It made note of the fact that solicitor-client privilege has evolved from a privilege of the law of evidence to a substantive protection. Relying on its own decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health (2008), the majority of the Court was clear that “solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal.” The Supreme Court concluded that the language in FOIPP failed to meet this threshold and dismissed the Commissioner’s appeal.
In our view
The Supreme Court’s decision has important implications for the access regimes in both the federal sphere and in Ontario. The authority granted to the federal Information Commissioner under the Access to Information Act is worded very similarly to FOIPP. It states:
Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.
Given that the Supreme Court has ruled that solicitor-client privilege goes beyond privilege of the law of evidence, it would appear that pursuant to Alberta (Information and Privacy Commissioner) v. University of Calgary the federal Information Commissioner does not have the authority to compel disclosure of records for which a claim of solicitor-client privilege is asserted.
In Ontario, the Information and Privacy Commissioner (the “IPC”) has a potentially broader statutory authority to require production of records than his federal or Alberta counterparts. The authority to require production of records is generously worded to apply “despite…any Act or privilege”.
Notwithstanding this broad authority, the IPC has adopted a policy in which it intrudes as little as possible with solicitor-client privilege. This can be seen by the IPC Order PO-3665 (November, 2016) involving The Ottawa Hospital. In that Order, the IPC held that certain records in the custody of the hospital were exempt from disclosure due to solicitor-client privilege. Unlike the Commissioner’s delegate in Alberta (Information and Privacy Commissioner) v. University of Calgary, the IPC did not require the production of the records in order to determine whether the claim of privilege was properly asserted. Instead, it relied on a sworn affidavit from the hospital’s in-house General Counsel confirming that the records were subject to solicitor-client privilege.
Nevertheless, the IPC still purports to retain jurisdiction to determine whether or not records fall within the solicitor-client exemption. Based on the Supreme Court’s decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, the IPC may revisit its policy and its position in this respect. The question will be whether the broader Ontario statutory language sufficiently demonstrates a clear and unambiguous legislative intent to override solicitor-client privilege.
For further information please contact Porter Heffernan at 613-940-2764.