Canada’s High Court Rejects Bid to Prioritize Privacy over Attorney-Client Privilege

    Dec 12, 2016

    The Supreme Court of Canada on November 25 upheld a Court of Appeal of Alberta decision declaring that Canada’s privacy commissioners cannot breach attorney-client privilege when ordering the disclosure of documents and records from public bodies. The ruling involved a case in which the Office Information and Privacy Commissioner (OIPC) of Alberta ordered the production of records over which the University of Calgary had claimed solicitor‑client privilege, citing a section of the Freedom of Information and Protection of Privacy Act (FOIPPA) stating that a public body must produce required records to the Commissioner “[d]espite … any privilege of the law of evidence.”

    “A number of cases before the courts and files before the Office of the Information and Privacy Commissioner involve records subject to claims of solicitor-client privilege,” the OIPC stated in a press release. “It is too early to say precisely how those matters will be dealt with until the implications of the SCC’s decision are fully understood.”

    The ruling left open the possibility that exemptions from solicitor-client privilege could be proscribed in legislation, but the exemptions must be unambiguous if they are to supersede the privilege. “To give effect to solicitor‑client privilege as a fundamental policy of the law, legislative language purporting to abrogate it, set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent to do so,” the court stated in its decision. The FOIPPA “does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor‑client privilege.”

    Although the decision relates directly to the Alberta legislature’s intent in enacting FOIPPA, it is expected to have similar implications across Canada as the federal Privacy Act contains similar language regarding the ability to breach solicitor-client privilege.

     This monthly advisory contains brief summaries of recent legislative and regulatory issues that may affect the management of records and information in Canada.

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