Supreme Court Rebuffs Privacy Commissioner and Affirms Solicitor-Client Privilege Claim

In Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada rejected an attempt by the Privacy Commissioner of Alberta to view documents over which the University was claiming solicitor–client privilege.  Responding to a freedom of information request by a former employee, the University of Calgary refused to produce certain records on the grounds that they were privileged.   The Alberta Privacy Commissioner invoked s. 56(3) of the Alberta Freedom of Information and Protection of Privacy Act (FOIPP) to demand production of the records despite “any privilege of the law of evidence” in order to assess the validity of the privilege claim.
 
The Supreme Court was asked to rule on whether the language of s. 56(3) was sufficient to abrogate solicitor-client privilege.  In a news release when leave was granted, the Alberta Privacy Commissioner cast the issue as one of access and transparency of public institutions, and argued that their ability to test a claim of privilege was fundamental to effective oversight:
 
       This case has significant implications for upholding the access rights of Albertans. Specifically, it                          impacts the Commissioner’s ability to provide effective oversight when reviewing decisions made by              government ministries, post-secondary institutions, school boards and municipalities, among others, in         response to access to information requests.
 
The SCC reaffirmed that solicitor-client privilege is fundamental to the proper functioning of the Canadian legal system, and concluded that for any legislation to abrogate that right would require clear and explicit language.  They held that “solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection."
 
This case has been followed closely by Privacy Commissioners, Law Societies and legal associations (there were 17 such interveners).  The outcome is an affirmation of the importance of the protection of solicitor–client privilege and sends a strong message to legislators about what it will take to set aside that protection.  It will be interesting to see whether any legislation is amended in response, or whether governments will quietly rejoice in their strengthened privilege rights when facing freedom of information requests.