Solicitor-Client Privilege Trumps Privacy Commissioner's Investigatory Powers

Author:Mr G. Ian Clarke
Profession:Ogilvy Renault
 
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Privacy and Access to Information

In a unanimous ruling issued on July 17, 2008, the Supreme

Court of Canada confirmed that the Privacy Commissioner of

Canada cannot order the production of documents over which a

claim of solicitor-client privilege is asserted.1

The Court ruled that the right of the individual or

organization "to keep solicitor-client confidences

confidential must prevail."

This decision clarifies the scope of the Commissioner's

investigatory power. In short, the Personal Information

Protection and Electronic Documents Act

("PIPEDA") does not grant the Commissioner authority

to compel production of privileged documents, even for the

limited purpose of determining whether privilege is properly

claimed.

BACKGROUND

Following her dismissal, an employee of the Blood Tribe

Department of Health asked to review her personal employment

information. The employer denied the request and the employee

filed a complaint with the Commissioner. The Commissioner, in

turn, requested a copy of the employee's file. The employer

provided all records save for a "bundle of letters"

over which a claim of solicitor-client privilege was advanced.

The Commissioner ordered the production of the withheld

documents on the basis that such production was necessary to

verify the claim of privilege. The employer challenged the

legality of the order and the case was heard by the Federal

Court.

The Federal Court considered the relevant paragraphs of

PIPEDA and, adopting a broad and purposive interpretation of

the legislation, concluded that the Commissioner did have the

extraordinary power to review documents for privilege. However,

the Federal Court of Appeal unanimously overturned this

decision. Writing for the Court of Appeal, Justice Malone

concluded that solicitor-client privilege was presumptively

inviolate and that no exception to it was disclosed in

PIPEDA.

THE SUPREME COURT OF CANADA'S DECISION

In a unanimous decision, the Supreme Court of Canada agreed

with the Federal Court of Appeal and affirmed that PIPEDA does

not grant the Commissioner the power to compel production of

privileged documents.

IMPLICATIONS OF THE RULING

It is now clear that the Commissioner does not have the

authority to order the production of privileged documents even

for the purpose of verifying a privilege claim. Although the

ruling does preclude the Commissioner from ordering production

of privileged documents, the Court has recognized that there

are, nonetheless, less...

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