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Case Comment: Privacy Commissioner of Canada v. Blood Tribe Department of Health
Published in the August 2008 issue of Transportation Notes - View Article
Transportation service providers in Canada, to the extent that their operations extend beyond the boundaries of a single province, are generally subject to federal jurisdiction. Among other applicable federal laws which affect their operations is the Personal Information Protection and Electronic Documents Act (“PIPEDA”). This statute empowers the Privacy Commissioner to police the collection, retention and use of personal information. Although the Commissioner claims independence and the same status as a superior court in her investigation of complaints, the fact is that the Commissioner is often in an adversarial position vis à vis the organizations she chooses to investigate. We are very pleased to report that one of the Commissioner’s most overweening pretensions to authority has been firmly rebuffed by a unanimous Supreme Court of Canada.
The issue which arose in Privacy Commissioner of Canada v. Blood Tribe Department of Health is whether the Commissioner may, in the course of an investigation, compel the production of documents for which solicitor-client privilege is claimed. The case arose in a typical context. An employee had been dismissed. She suspected that her employer acted on the basis of inaccurate information and made a demand for production of documents in her former employer’s possession relating to her. The former employer produced all documents except those for which it claimed solicitor-client privilege.
The Commissioner insisted that she should have the right to review the documents for which privilege had been claimed in order to be “absolutely certain that the [privilege] has been properly invoked”. At first instance this position was accepted. It was then overturned by the Federal Court of Appeal. The Supreme Court has now made the matter final: The Commissioner does not have the right to access solicitor-client documents, even for the limited purpose of determining whether privilege was properly claimed.
The Supreme Court began its analysis by affirming the fundamental importance of solicitor-client privilege to the proper functioning of the legal system. It cited precedent for the proposition that “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance”.
PIPEDA does not expressly grant the Commissioner the right to review solicitor-client documents. However, she argued that such a power is implicit. An objective of Parliament was the creation of an inexpensive process to allow an employee access to personal information in the possession of an employer. This objective would be furthered by allowing the review. She also pointed to the fact that the legislation granted to her office the powers of a superior court of record. These arguments were rejected. The legislation grants no more than a general power to compel production of records and it has already been determined that such a power does not include the power to compel solicitor-client documents.
Several additional arguments were advanced by the Commissioner. A thread running through all was “abrogation by inference”. The Commissioner offered various analogies to support the suggestion that she was entitled to interfere with solicitor-client privilege with no express grant of power. The Court turned back all these arguments, noting that the Commissioner, unlike a court, may be adversarial in interest to the employers she investigates. She may take them to court and even share compelled information with prosecutorial authorities without court order. Her attempt to abrogate solicitor-client privilege has been happily rebuffed.