Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., 2006 FCA 334

• Judge: Sharlow, Pelletier and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 18, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 334;(2006), 354 N.R. 302 (FCA)

Blood Tribe Health Dept. v. Privacy Commr. (2006), 354 N.R. 302 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. NO.005

Blood Tribe Department of Health (appellant) v. The Privacy Commissioner of Canada and Annette J. Soup (respondents) and The Law Society of Alberta (intervenor)

(A-147-05; 2006 FCA 334)

Indexed As: Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al.

Federal Court of Appeal

Sharlow, Pelletier and Malone, JJ.A.

October 18, 2006.

Summary:

A former Department employee sought access to personal information in her file. The Department denied access. The em­ployee filed a complaint with the Privacy Commissioner. The Department claimed so­licitor-client privilege respecting a "bundle of letters" and was not prepared to disclose the documents to the employee or any third par­ty, including the Privacy Commissioner. The Assistant Commissioner ordered produc­tion of the "bundle of letters" to permit verifica­tion of whether solicitor-client privi­lege was established. The Department ap­plied for ju­di­cial review of the Assistant Commis­sion­er's order, challenging the legal­ity of the order.

The Federal Court, in a judgment reported (2005), 265 F.T.R. 276, dismissed the appli­cation. The standard of review of the Assis­tant Commissioner's production order was cor­rectness. The court held that the Privacy Commissioner, in investigating a complaint under the Personal Information Protection and Electronic Documents Act, had authority to compel production of documents over which solicitor-client privilege was claimed for the purpose of verifying that claim. The Department appealed.

The Federal Court of Appeal allowed the ap­peal, set aside the order and vacated the Commissioner's production order.

Crown - Topic 7146

Examination of public documents - Office of commissioner - Investigative powers - [See Crown - Topic 7203 ].

Crown - Topic 7203

Examination of public documents - Free­dom of information - Bars - Solicitor-client privilege - An institution refused a former employee access to documents in her per­sonnel file on the ground of solici­tor-client privilege - In investigating the employee's complaint under the Personal Information Pro­tection and Electronic Documents Act, the Assistant Commis­sioner ordered pro­duc­tion of the documents to the Commis­sioner for the purpose of verifying the privilege claim - The institu­tion sought judicial review, challenging the legality of the compelled production order - The trial judge held that the Assistant Commis­sion­er's decision was correct - Applying a pur­po­sive and liberal interpre­tation, and hav­ing regard to the overall scheme of the Act and the Commissioner's responsibility to con­duct an effective in­vestigation, the Com­missioner was entitled to production of documents for which solicitor-client privilege was claimed for the limited pur­pose of verifying the claim - The Federal Court of Appeal set aside the production order - The trial judge erred in adopting a pur­posive and liberal interpreta­tion of s. 12(1)(a) and (c) of the Act - Recent pro­nouncements of the Supreme Court of Can­a­da on production of docu­ments for which solicitor-client privilege was claimed called for a restrictive inter­pretation of the Act, requiring express language to em­power the Commissioner to abrogate solic­itor-client privilege.

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review and appeals - Standard of review - [See Crown - Topic 7203 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 9].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 13].

Pritchard v. Human Rights Commission (Ont.), [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1, refd to. [para. 15].

Canada (Attorney General) et al. v. Infor­mation Commissioner (Can.) (2005), 335 N.R. 8 (F.C.A.), reving. [2004] 4 F.C. 181; 255 F.T.R. 56 (T.D.), refd to. [para. 16].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 20].

Legal Services Society (B.C.) v. Infor­mation and Privacy Commissioner (B.C.) et al., [2003] 8 W.W.R. 399; 182 B.C.A.C. 234; 300 W.A.C. 234 (C.A.), refd to. [para. 21].

Englander v. Telus Communications Inc., [2005] 2 F.C. 572; 328 N.R. 297 (F.C.A.), refd to. [para. 23].

Lavigne v. Commissioner of Official Lan­guages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282, refd to. [para. 24].

Canadian Human Rights Commission et al. v. Northwest Territories (2000), 191 F.T.R. 266 (T.D.), affd. (2001), 278 N.R. 187; 2001 FCA 259, refd to. [para. 29].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 32].

Ontario (Minister of Correctional Services) v. Goodis et al. (2006), 350 N.R. 154; 214 O.A.C. 377; 2006 SCC 31, refd to. [para. 33].

Statutes Noticed:

Personal Information Protection and Elec­tronic Documents Act, S.C. 2000, c. 5, sect. 9(3)(a) [para. 4]; sect. 12(1)(a), sect. 12(1)(c) [para. 3]; sect. 20(5) [para. 19].

Authors and Works Noticed:

McIsaac, Barbara, Shields, Rick, and Klein, Kris, The Law of Privacy in Can­ada (2000 Looseleaf Ed.), generally [para. 23].

Counsel:

Gary Befus, for the appellant;

Steve Welchner and Patricia Kosseim, for the respondent;

Garner A. Groome, for the intervenor.

Solicitors of Record:

Walsh Wilkins Creighton LLP, for the appellant;

John H. Sims, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent;

Garner A. Groome, Law Society of Al­berta, for the intervenor.

This appeal was heard on October 4, 2006, at Calgary, Alberta, before Sharlow, Pelletier and Malone, JJ.A., of the Federal Court of Ap­peal.

On October 18, 2006, Malone, J.A., deliv­ered the following judgment for the Court of Appeal.