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Privacy Commissioner Cannot Override Solicitor–Client Privilege
Published in the August 2008 issue of Litigation Notes - View Article
Synopsis: The Supreme Court of Canada has ruled that the powers of the Federal Privacy Commissioner do not extend to compelling the production of documents in respect of which there is a claim for solicitor-client privilege
The Supreme Court of Canada recently ruled on an important issue involving the power of Canada’s Privacy Commissioner to compel the production of documents in respect of which there has been a claim of solicitor-client privilege. The case of Privacy Commissioner of Canada v. Blood Tribe Department of Health related to an employee who 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 employer denied the request and the employee filed a complaint with the Privacy Commissioner, seeking access to her personal file.
The Privacy Commissioner operates pursuant to powers contained 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 and confers the power to compel the production of records “in the same manner and to the same extent as a superior court of record”
In this case the Privacy Commissioner requested the employee’s file and the employer complied, except with respect to certain documents in respect of which solicitor-client privilege was claimed. 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 was rebuffed.
Privacy Commissioner of Canada v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII)