eCaseNote 2008 No. 02

Privacy: A Two-Way Street

Privacy Commissioner of Canada v. Blood Tribe Department of Health, 2008 SCC 44

Privacy is a contentious issue in this day and age. New legislation and judicial interpretations of such are constantly re-shaping the law on this subject. The recent Blood Tribe decision, rendered by the Supreme Court of Canada on July 17th, 2008, carries important implications for our Province.

Particularly at issue in this case was whether section 12 of the Personal Information Protection and Electronic Documents Act (PIPEDA) enabled the Privacy Commissioner to compel disclosure by a target of her investigation of materials over which solicitor-client privilege were claimed without her first obtaining a decision from the Federal Court that the privilege did not apply. The Supreme Court held that it did not and, in doing so, drew a stark distinction between the Commissioner and a court. The Court even went beyond the relatively narrow scope of solicitor-client privilege and held that the Commissioner did not have the power to order the production of any documents without first making application to the Federal Court with the consent of the complainant.

This matter stemmed from a request for personal information by a dismissed employee. She made the request because she believed that the employer had improperly collected inaccurate information and used it to discredit her before its board. This request was initially denied by the employer without reasons, which prompted the PIPEDA complaint. The Privacy Commissioner requested the complainant’s employment records from the employer. The employer provided some documents, but withheld what it described as a “bundle of letters” from its solicitors over which a claim of solicitor-client privilege was advanced.

Section 9(3)(a) of PIPEDA provides that an organization is not required to give access to personal information if the information is protected by solicitor-client privilege. Section 21(a) of the Newfoundland and Labrador Access to Information and Protection of Privacy Act (ATIPPA) closely mirrors that language.

This provision conflicts with the Commissioner’s statutory authority under s.12 of PIPEDA to compel the production of documents and to “receive and accept any evidence and other information, whether on oath, by affidavit or otherwise that the Commissioner sees fit, whether or not it is or would be acceptable in a court of law.” The Supreme Court held that s.12 did not contain the “clear and unambiguous statutory language” that is required to overcome solicitor-client privilege, and that any decision with respect to the justification of a claim to solicitor-client privilege lies within the purview of a court unless Parliament has explicitly stated otherwise.

Interestingly, Mr. Justice Binnie, for the unanimous Court, went on to indicate that the Commissioner did not have the authority to order the production of any documents. Instead, the Commissioner must note that production was refused and seek relief before a court. The Commissioner’s argument that the Commission was analogous to a court, which has the authority to adjudicate privilege claims, was unanimously rejected by the Supreme Court. In seeking production of such documents, the Commissioner becomes an adversary of the target of the complaint, and the Supreme Court held that this clearly distinguishes the Commissioner from an independent court.

The Commissioner’s argument that she had the authority to compel the production of documents over which solicitor-client privilege was claimed, regardless of relevance, was also dismissed by the Supreme Court, on the grounds that such would have given the Commissioner significantly greater powers than those of a court. Courts require evidence or argument establishing that the document over which privilege is being claimed is necessary to properly decide an issue in the case.

Finally, the Court determined that routine access to solicitor-client confidences could not be established to be “absolutely necessary”, as there is adequate opportunity for the Commissioner to have the privilege verified by a court by use of procedures already in place.

Evidentiary privileges set forth in the Newfoundland and Labrador Public Inquiries Act (PIA) are more restrictive than those set forth in the federal legislation. S.12(1) of the PIA grants a person the same privileges in relation to the disclosure of information and the production of records and documents as the person would have in relation to the same disclosure and production in a court of law. Exceptions to this general rule are made in s.12(2) and (3) of the PIA, which provide that a refusal to disclose information cannot be justified on the grounds that the disclosure would be injurious to the public interest, or would violate Crown privilege, or because disclosure is prohibited or restricted by another Act or regulation. These specific exceptions do not include a refusal because a document is protected by solicitor-client privilege.

With this in mind, it is hard to fathom that a more liberal judicial interpretation would be given to the Office of the Information and Privacy Commissioner under ATIPPA than that specified in the Blood Tribe decision.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.