University of Calgary v. J.R. et al., 2015 ABCA 118

• Judge: Rowbotham, Bielby and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 13, 2015
• Citations: 2015 ABCA 118;(2015), 602 A.R. 35

Calgary Univ. v. J.R. (2015), 602 A.R. 35; 647 W.A.C. 35 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AP.020

The Board of Governors of the University of Calgary (appellant/applicant) v. J.R. and the Information and Privacy Commissioner of Alberta (respondents/respondents) and The Law Society of Alberta (intervenor/intervenor)

(1301-0368-AC; 2015 ABCA 118)

Indexed As: University of Calgary v. J.R. et al.

Alberta Court of Appeal

Rowbotham, Bielby and Brown, JJ.A.

April 2, 2015.

Summary:

The University of Calgary was sued by a former employee (J.R.) who alleged constructive dismissal. Affidavits of records were exchanged. J.R. took no objection to the University's assertions of solicitor-client privilege. The litigation was resolved: see (2012), 545 A.R. 110. Concurrent to commencing the civil action, J.R. made a request to access information under the Freedom of Information and Protection of Privacy Act (FOIPP). The University refused to produce the records in issue, asserting they were subject to solicitor-client privilege. A delegate, acting on behalf of the Information and Privacy Commissioner, issued a Notice to Produce Records, to determine whether solicitor-client privilege had been properly asserted. The University applied for judicial review. The Law Society of Alberta was granted intervener status.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 574 A.R. 137, dismissed the application. Applying the modern approach to statutory interpretation, the chambers judge found that FOIPP granted the Commissioner and her delegates authority to compel production of disputed records to verify claims of solicitor-client privilege. The delegate properly invoked his authority after the University refused to substantiate in any other way its claims of solicitor-client privilege. The University appealed.

The Alberta Court of Appeal allowed the appeal, and ordered the Commissioner to pay the University's costs, both of the appeal and below. The chambers judge erred in applying the modern approach to statutory interpretation in considering the meaning of s. 56(3) of FOIPP. He ought to have interpreted that provision strictly. Section 56(3), strictly interpreted, did not authorize the Commissioner to infringe solicitor-client privilege. "The Commissioner does not have statutory authority to compel production of records over which a public body such as the University has asserted solicitor-client privilege. It follows that her delegate holds no such authority, either."

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Barristers and Solicitors - Topic 1641

Relationship with client - Confidential communications - General - [See first Crown - Topic 7203 ].

Crown - Topic 7110

Examination of public documents - General - Record under control of government or public body - [See third Crown - Topic 7203 ].

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General (incl. interpretation) - [See first Crown - Topic 7203 ].

Crown - Topic 7202

Examination of public documents - Freedom of information - Bars - Interpretation - [See first Crown - Topic 7203 ].

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - Section 56(3) of Alberta's Freedom of Information and Protection of Privacy Act provided as follows: "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 ... (2)." - At issue was whether s. 56(3) conferred upon the Commissioner (or her delegate) authority to issue a notice to produce in relation to records over which solicitor-client privilege had been asserted - The Alberta Court of Appeal held that the chambers judge erred in applying the modern approach to statutory interpretation in considering the meaning of s. 56(3) - The direction in Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al. (2008) (S.C.C.) "is categorical: because of the central importance of solicitor-client privilege to our legal system and to the preservation of a relationship which is integral to the administration of justice, where statutory language might be interpreted as authorizing an infringement of solicitor-client privilege, the rule of strict construction - and only the rule of strict construction - is to be applied ab initio." - See paragraph 40.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - Section 56(3) of Alberta's Freedom of Information and Protection of Privacy Act (FOIPPA) stated: "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 ... (2)." - At issue was whether s. 56(3) conferred upon the Commissioner (or her delegate) authority to issue a notice to produce in relation to records over which solicitor-client privilege had been asserted - The Alberta Court of Appeal held that the rule of strict construction applied - The Court described that rule as "demanding of statutory language the highest degree of clarity, explicitness and specificity in order to support a conclusion that it was intended to authorize infringements of solicitor-client privilege. That is, it requires language which is absolutely clear, such that the underlying legislative intent is completely explicit. This requires specific reference to solicitor-client privilege. Departing from this stricture would undermine the rationale for the rule of strict construction of statutory language in such cases - being solicitor-client privilege's central and (among all privileges recognized in law) unique importance to the proper functioning of the legal system. ... [T]he driving concern for courts in such cases is whether the posited infringement of solicitor-client privilege was clearly intended." - See paragraph 48.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - Section 56(3) of Alberta's Freedom of Information and Protection of Privacy Act (FOIPPA) stated: "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 ... (2)." - At issue was whether s. 56(3) conferred upon the Commissioner (or her delegate) authority to issue a notice to produce in relation to records over which solicitor-client privilege had been asserted - The Alberta Court of Appeal held that s. 56(3), strictly interpreted, did not authorize the Commissioner to infringe solicitor-client privilege - Applying the direction in Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al. (2008) (S.C.C.) to the language of s. 56(3) "leads unavoidably to the conclusion that it does not authorize the Commissioner or her delegate to order a public body to produce to her records over which it has asserted solicitor-client privilege. Section 56(3) does not clearly, explicitly and specifically authorize infringement of solicitor-client privilege. Rather, it merely provides that a public body must turn over records, despite any privilege of the law of evidence that exists. To convert that general statement into an authorization for demanding that a public body do so where the privilege claimed is solicitor-client privilege, an impermissible inference must be drawn, premised upon solicitor-client privilege having been implicitly captured by the general language negating 'any privilege of the law of evidence'. This is precisely the sort of statutory construction that Blood Tribe precludes." - See paragraph 49.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - J.R. had sued the University of Calgary for wrongful dismissal - In the course of that litigation, affidavits of records were exchanged - J.R. took no objection to the University's assertions of solicitor-client privilege made therein - The litigation was resolved three years ago - Concurrent to commencing her civil action, J.R. made a request to access information under the Freedom of Information and Protection of Privacy Act (FOIPPA) - The Alberta Court of Appeal stated that "While recognizing that FOIPPA's process is independent of the litigation process, I would have thought that, where the propriety of an assertion of solicitor-client privilege by a public body litigant is to be reviewed, the better practice would generally be to have that review performed by a judge or master of the court in the course of that litigation, rather than by engaging a collateral process." - See paragraph 53.

Crown - Topic 7281

Examination of public documents - Freedom of information - Practice - General - [See fourth Crown - Topic 7203 ].

Crown - Topic 7285

Examination of public documents - Freedom of information - Practice - Costs - The issue on appeal was the scope of Alberta's Information and Privacy Commissioner's authority under s. 56(3) of the Freedom of Information and Protection of Privacy Act - The Commissioner, as respondent, was unsuccessful - With respect to costs, the Commissioner submitted that costs should not be awarded, given that she had only responded to the appellant's challenge to her authority to review certain records, and not to the merits of the underlying dispute - The Alberta Court of Appeal ordered the Commissioner to pay the appellant's costs, both of the appeal and below - "The Commissioner's entitlement to enter the ring to defend the merits of her delegate's decision in these circumstances does not, however - absent some other reason for departing from the default costs rule - mean she should be immune from that rule's adverse consequences where she is unsuccessful" - See paragraphs 52 to 56.

Statutes - Topic 510

Interpretation - General principles - Strict interpretation - [See second Crown - Topic 7203 ].

Cases Noticed:

J.R. v. University of Calgary et al. (2012), 545 A.R. 110; 2012 ABQB 342, refd to. [para. 3].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2005] 4 F.C.R. 34; 265 F.T.R. 276; 2005 FC 328, revd. [2007] 2 F.C.R. 561; 354 N.R. 302; 2006 FCC 334, affd. [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, appld. [paras. 7, 22 et seq.].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745, refd to. [para. 7].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 9, footnote 2].

Canadian Natural Resources Ltd. v. ShawCor Ltd. et al. (2014), 580 A.R. 265; 620 W.A.C. 265; 376 D.L.R.(4th) 581; 2014 ABCA 289, refd to. [para. 9, footnote 2].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 12].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 12].

Board of Education of School District No. 49 (Central Coast) v. Information and Privacy Commissioner (B.C.) et al., [2012] B.C.T.C. Uned. 427; [2012] 9 W.W.R. 153; 2012 BCSC 427, refd to. [para. 12].

Newfoundland and Labrador (Attorney General) v. Information and Privacy Commissioner (Nfld. and Lab.) (2011), 314 Nfld. & P.E.I.R. 305; 977 A.P.R. 305; 343 D.L.R.(4th) 57; 2011 NLCA 69, refd to. [para. 12].

Imperial Oil Ltd. v. Calgary (City) et al. (2014), 580 A.R. 125; 620 W.A.C. 125; 374 D.L.R.(4th) 489; 2014 ABCA 231, refd to. [para. 18].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 18].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 18].

Ontario (Minister of Finance) v. Smith et al. (2014), 457 N.R. 40; 320 O.A.C. 135; 2014 SCC 36, refd to. [para. 19].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 19].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.), [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 19].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, affing. (2000), 255 A.R. 86; 220 W.A.C. 86; 2000 ABCA 54, refd to. [para. 19].

Federation of Law Societies of Canada v. Canada (Attorney General) (A.G.) (2015), 365 B.C.A.C. 3; 627 W.A.C. 3; 2015 SCC 7, refd to. [para. 19].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 20].

R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285, refd to. [para. 27].

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, consd. [para. 34].

Canada (Attorney General) et al. v. Information Commissioner (Can.) (2005), 335 N.R. 8; 253 D.L.R.(4th) 590; 2005 FCA 199, refd to. [para. 39].

Piikani Nation et al. v. Kostic, [2015] A.R. Uned. 33; 2015 ABCA 60, refd to. [para. 48].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 54].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, refd to. [para. 54].

Covenant Health v. Information and Privacy Commissioner (Alta.) et al. (2014), 596 A.R. 234; 2014 ABQB 562, refd to. [para. 55].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 56(2) [para. 9, footnote 1]; sect. 56(3) [para. 12]; sect. 59(4) [para. 50].

Interpretation Act, R.S.A. 2000, c. I-8, sect. 10 [para. 12, footnote 4].

Personal Information Protection Act, S.A. 2003, c. P-6.5, sect. 38 [para. 50].

Authors and Works Noticed:

Côté, Pierre-André, Beaulac, Stéphane, and Devinat, Mathieu, The Interpretation of Legislation in Canada (4th Ed. 2011), p. 472 [para. 37].

Driedger, Elmer, Construction of Statutes (2nd Ed. 1983), p. 87 [para. 12, footnote 3].

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), pp. 496 [para. 27]; 500 [para. 36].

Counsel:

R. Calvert, Q.C., and M.D.A. Ford, Q.C., for the appellant;

G. Solomon, Q.C., for the respondents, J.R. and The Information and Privacy Commissioner of Alberta;

D.P. Jones, Q.C., for the intervener, The Law Society of Alberta.

This appeal was heard on January 13, 2015, before Rowbotham, Bielby and Brown, JJ.A., of the Alberta Court of Appeal. In reasons written by Brown, J.A., the Court delivered the following judgment, filed at Calgary, Alberta, on April 2, 2015.