The SCC Protects Solicitor-Client Privilege from Disclosure to the OIPC in Alberta, but not BC
On Friday, November 25, the Supreme Court of Canada released a decision that protects documents in which solicitor-client privilege is claimed from disclosure to the Information and Privacy Commissioner in Alberta. In Alberta (Information and Privacy Commissioner) v University of Calgary, Justice Côté interprets section 56(3) of the Alberta Freedom of Information and Protection of Privacy Act, which requires disclosure to the Commissioner of records “[d]espite … any privilege of law of evidence”, to not include the authority to compel disclosure of records that are protected by solicitor-client privilege. In arriving to this conclusion, however, Justice Côté contrasts the Alberta legislation with the Freedom of Information and Protection of Privacy Act in British Columbia (“FOIPPA”). Her analysis suggests that, under the BC legislation, a court could hypothetically order a public body to disclose records protected by solicitor-client privilege to the BC Information and Privacy Commissioner under section 44(2).
The case arose because a delegate of the Information and Privacy Commissioner of Alberta ordered the University of Calgary to produce records that the university claimed are protected by solicitor-client privilege. The delegate made the order so that he could assess whether privilege was being properly asserted. The delegate cited section 56(3) of the Freedom of Information and Protection of Privacy Act in Alberta for making the disclosure order that requires public bodies,“[d]espite … any privilege of law of evidence,” to produce any record to the Commissioner.
The Supreme Court of Canada disagreed with the delegate and held that this section does not apply to records protected by solicitor-client privilege. To overcome the protection of solicitor-client privilege, the court determined that “clear, explicit and unequivocal” language would be required, which is not met by the Alberta legislation as it was drafted. The reason is because solicitor-client privilege is recognized in jurisprudence as a substantive right and is no longer regarded as just a law of evidence. Because the legislation stated it applied “[d]espite … any privilege of the law of evidence,” solicitor-client privilege was not unequivocally set aside by the legislation.
In arriving to this conclusion, Justice Côté contrasted the Alberta legislation with FOIPPA. She indicates that, unlike the Alberta legislation that makes reference to a concept of “legal privilege” as well as a “privilege of law of evidence”, FOIPPA, as it is drafted, does not have the same interpretive conflict because FOIPPA does not refer to a concept of “legal privilege.” In addition, she found that FOIPPA had legal safeguards to protect solicitor-privilege by vesting much of the Commissioner’s power to make a production orders to review by the Supreme Court under section 44(2), which authorizes the Commissioner to apply for a production order from the court. She indicates that, because FOIPPA provides for a process for a production order to be made by the Supreme Court, FOIPPA provides protections for solicitor-client privilege that is “in a manner consistent with the legislative respect for fundamental values” while the Alberta legislation does not.
Although not necessarily binding, but likely highly persuasive, this decision suggests that a local government in British Columbia could potentially be ordered by the Supreme Court to disclose documents that are protected by solicitor-client privilege to the Commissioner under section 44(2). Section 44(2.1) of FOIPPA also anticipates the disclosure of documents protected by solicitor-client privilege to the Commissioner. This order could possibly be made even though it appears a similar order is currently not available in Alberta.
Although the BC Commissioner could apply to the Supreme Court to make such an order, whether the court would make such an order, or under what circumstances the court would make such an order, is a different question. And just because a court could make such an order, does not mean that a court will exercise this authority.