Focus On

Government Law - ACCESS TO INFORMATION AND PRIVACY - Access to information - Inspection of public documents - Bars and grounds for refusal - Solicitor-client privilege

Thursday, December 15, 2016 @ 7:00 PM  

Appeal from a judgment of the Alberta Court of Appeal setting aside a decision dismissing the University of Calgary’s application for judicial review of an Information and Privacy Commissioner of Alberta (Commissioner) decision ordering production of documents for review pursuant to the Freedom of Information and Protection of Privacy Act (FOIPP). A delegate of the Commissioner ordered the University of Calgary (University) to produce records over which it claimed solicitor-client privilege in order to verify that the privilege was properly asserted. At the heart of this appeal was whether s. 56(3) of FOIPP, which required a public body to produce records to the Commissioner “despite any privilege of the law of evidence”, allowed the Commissioner and her delegates to review documents over which solicitor-client privilege was claimed. The University was sued by a former employee who brought a claim of constructive dismissal. In October 2008, the former employee made a request for access to information under s. 7 of FOIPP, seeking records about her in the University’s possession. The University provided some records in response to the request, but claimed solicitor-client privilege over other records. In March 2009, the former employee brought an application under FOIPP seeking production of the withheld records. The University declined to provide a copy of the withheld records, and instead provided a list of documents identified by page numbers only. This way of proceeding complied with the law and the practice regarding identification of solicitor-client privileged documents in civil litigation in Alberta at that time. The University also provided a sworn affidavit from its Access and Privacy Coordinator indicating solicitor-client privilege had been asserted over the records. The delegate issued a Notice to Produce Records under s. 56(3) of FOIPP, requiring the University to produce the documents for review. The University again did not comply, and in October 2010 sought judicial review of the delegate’s decision to issue the Notice to Produce Records. This was the matter on appeal. The application judge considered the delegate’s exercise of the power to compel the production of the documents. He found that the delegate had correctly issued the notice, noting that the University had refused to substantiate in any other way its claims of solicitor-client privilege. The Court of Appeal allowed the University’s appeal, concluding that the Commissioner did not have statutory authority to compel the production of records over which solicitor-client privilege was asserted.

HELD: Appeal dismissed. The applicable standard of review was correctness. The present case engaged solicitor-client privilege in its substantive, rather than evidentiary, context. To give effect to this privilege as a fundamental policy of the law, legislative language purporting to abrogate it, set it aside or infringe it had to be interpreted restrictively, and a clear and unambiguous legislative intent to do so was to be demonstrated. The expression “any privilege of the law of evidence” was not sufficiently clear and precise to set aside or permit an infringement of solicitor-client privilege. If the legislature intended to allow the Commissioner to compel the production of documents over which solicitor-client privilege was asserted under s. 56(3), it could have done so using the words it used in s. 27(1) rather than the phrase “privilege of the law of evidence”. It would also have legislated safeguards to ensure that solicitor-client privileged documents were not disclosed in a manner that compromised the substantive right. In the context of FOIPP, the term “legal privilege” was a broader category than “privilege of the law of evidence”. The expression “any privilege of the law of evidence” was a narrower category falling within the scope of “legal privileges”. Even if the language of s. 56(3) did clearly evince legislative intent to set aside solicitor-client privilege, this was not an appropriate case in which to order production to the Commissioner. The delegate found that because the University failed to present evidence of its claim of solicitor-client privilege as required by the Solicitor-Client Privilege Adjudication Protocol, it was necessary for the delegate to review the records. However, the Protocol was not law. No evidence or argument had been made to suggest that privilege was falsely claimed by the University. In these circumstances, the delegate erred in concluding that the claim needed to be reviewed to fairly decide the issue.