Written By Martin Kratz, Michael Whitt, Stephen Burns and Alastair D.L. MacKinnon
The issue arose in the context of a wrongful dismissal claim by JR against her former employer, the University of Calgary. In addition to the usual exchange of records in the course of litigation, JR also made an access to information request under FOIPPA for all records in the University's possession relating to her. In response, the University produced some records, but objected to producing others on the basis of solicitor-client privilege. JR asked the Commissioner to review the University's response to the access request, and in particular the University's assertion of solicitor-client privilege.
The Commissioner appointed a delegate to conduct a formal inquiry to the University's response. The delegate requested that the University produce un-redacted copies of the records over which privilege was claimed. When the University refused this request, the Commissioner's delegate issued a notice to produce records under subsections 56(2) and (3) of FOIPPA, which allow the Commissioner to compel the production of records despite any privilege of the law of evidence (the Notice). The University's application for judicial review of the Notice was dismissed by a chambers judge.
On appeal, the Court reversed the chamber judge's decision, and held that s 56 of FOIPPA does not authorize the Commissioner to infringe solicitor-client privilege. The Court held that any statutory language purporting to abrogate solicitor-client privilege must be interpreted restrictively. Following the Supreme Court of Canada's decision in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, the Court set out the following three principles for determining whether a statutory enactment authorizes the infringement of solicitor-client privilege:
- Statutory language must be clear, unequivocal, and unambiguous,
- Statutory language cannot be taken as authorizing the infringement of solicitor-client privilege by inference or implication, and
- General language granting power to compel production of records is insufficiently specific to authorize a demand for production of records over which solicitor-client privilege is asserted.
In short, the statutory language must be clear, explicit and specific which requires specific reference to solicitor-client privilege.
The Court also affirmed the principle that solicitor-client privilege is not merely a rule of evidence, but rather a substantive rule of law of central importance to the legal system. It noted that solicitor-client privilege is nearly absolute, and can only be abrogated in rare cases e.g., where there is a risk of wrongful conviction and even then only to the smallest extent necessary. Even where infringement is authorized or justified, it must be strictly construed.
In the result, the Court held that s 56 of FOIPPA did not authorize the Commissioner (or her delegate) to infringe solicitor-client privilege. Such authorization would have to be inferred from the words despite any privilege of the law of evidence, which does not accord with the clear, explicit and specific threshold that is required. Moreover, solicitor-client privilege is not a mere rule of evidence.
This decision is a welcome affirmation from the Court of Appeal that statutory authorization to infringe solicitor-client privilege cannot be read-into or inferred from generally worded statutory language. As alluded to by the Court, it also informs the interpretation of s 38 of the Personal Information Protection Act, SA 2003, c P-6.5, which contains an identically worded provision that applies more broadly to organizations (as opposed to a public body under FOIPPA). In light of this decision, absent explicit statutory reform, Alberta's privacy legislation does not permit the Commissioner to compel and inspect records over which solicitor client privilege is claimed.
Several practical steps are available to strengthen claims to solicitor-client privilege. Clients would be well-served to involve their legal counsel at the earliest possible stage where legal privilege may be sought. Careful note-taking and marking appropriate documents as solicitor-client privileged will make it easier to assert the privilege should the need arise. If you have any questions about how this decision may affect your organization, institution or business please contact Martin Kratz, Michael Whitt, Stephen Burns, Sébastien Gittens or Graeme Harrison.