Commissioner could not compel production of records over which solicitor-client privilege asserted

Provincial privacy legislation

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Miscellaneous

Commissioner could not compel production of records over which solicitor-client privilege asserted

Solicitor-client privilege. In context of constructive dismissal claim, delegate of Information and Privacy Commissioner of Alberta ordered production of records over which University had claimed solicitor-client privilege. Delegate issued Notice of Inquiry instructing University to provide copy of records at issue or two copies of affidavit or unsworn evidence verifying solicitor-client privilege over records. University declined to provide copy of withheld records, and instead provided list of documents identified by page number only and affidavit indicating solicitor-client privilege had been asserted over records. Delegate issued Notice to Produce Records under s. 56(3) of Freedom of Information and Protection of Privacy Act (FOIPP) requiring University to produce documents for review. University again did not comply, and sought judicial review of delegate’s decision to issue the Notice to Produce Record. Application judge found that s. 56(3) of FOIPP permitted Commissioner to compel production of disputed records to verify claims of solicitor-client privilege. Application judge also found that provisions of FOIPP did not work together effectively unless Commissioner had power to compel production of information over which privilege was alleged since FOIPP provided no other mechanism to review that type of claim. Application judge found that delegate had correctly issued notice, noting that University had refused to substantiate in any other way its claims of solicitor-client privilege. Court of Appeal allowed University’s appeal, concluding that Commissioner did not have statutory authority to compel production of records over which solicitor-client privilege was asserted. Commissioner appealed with Supreme Court of Canada. Appeal dismissed. Under FOIPP, solicitor-client privilege was no longer merely privilege of law of evidence, but substantive right that was fundamental to proper functioning of legal system. Disclosure of documents pursuant to statutorily established access to information regime, separate from judicial proceeding, engaged solicitor-client privilege in its substantive, rather than evidentiary context. Reading s. 56(3) of FOIPP in context of statute as whole supported conclusion that legislature did not intend to set aside solicitor-client privilege.
Alberta (Information and Privacy Commissioner) v. University of Calgary (2016), 2016 CarswellAlta 2247, 2016 CarswellAlta 2248, 2016 SCC 53, 2016 CSC 53, Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); affirmed (2015), 2015 CarswellAlta 574, 2015 ABCA 118, Patricia Rowbotham J.A., Myra Bielby J.A., and Russell Brown J.A. (Alta. C.A.).