Alberta (Information and Privacy Commissioner) v. University of Calgary

Alberta (Information and Privacy Commissioner) v. University of Calgary
Collection
Supreme Court Judgments
Date
2016-11-25
Neutral citation
2016 SCC 53
Report
[2016] 2 SCR 555
Case number
36460
Judges
Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne
On appeal from
Alberta
Subjects
Administrative law
Notes
SCC Case Information: 36460
Decision Content
SUPREME COURT OF CANADA
Citation: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555
Appeal heard: April 1, 2016
Judgment rendered: November 25, 2016
Docket: 36460
Between:
Information and Privacy Commissioner of Alberta
Appellant
and
Board of Governors of the University of Calgary
Respondent
- and -
Law Society of Alberta, British Columbia
Freedom of Information and Privacy Association,
Information and Privacy Commissioner of Ontario,
Information and Privacy Commissioner for British Columbia,
Information and Privacy Commissioner for the
Province of Newfoundland and Labrador,
Advocates’ Society, Federation of Law Societies of Canada,
Canadian Bar Association, Information Commissioner of Canada,
Privacy Commissioner of Canada, Manitoba Ombudsman,
Northwest Territories Information and Privacy Commissioner,
Nova Scotia Information and Privacy Commissioner [Review Officer],
Nunavut Information and Privacy Commissioner,
Saskatchewan Information and Privacy Commissioner,
Yukon Ombudsman and Information and Privacy Commissioner and
Criminal Lawyers’ Association
Interveners
Coram: Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
Reasons for Judgment:
(paras. 1 to 71)
Partially Concurring Reasons:
(paras. 72 to 129)
Partially Concurring Reasons:
(paras. 130 to 138)
Côté J. (Moldaver, Karakatsanis, Wagner, and Gascon JJ. concurring)
Cromwell J.
Abella J.
Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555
Information and Privacy Commissioner of Alberta Appellant
v.
Board of Governors of the University of Calgary Respondent
and
Law Society of Alberta, British Columbia
Freedom of Information and Privacy Association,
Information and Privacy Commissioner of Ontario,
Information and Privacy Commissioner for British Columbia,
Information and Privacy Commissioner for the
Province of Newfoundland and Labrador,
Advocates’ Society, Federation of Law Societies of Canada,
Canadian Bar Association, Information Commissioner of Canada,
Privacy Commissioner of Canada, Manitoba Ombudsman,
Northwest Territories Information and Privacy Commissioner,
Nova Scotia Information and Privacy Commissioner [Review Officer],
Nunavut Information and Privacy Commissioner,
Saskatchewan Information and Privacy Commissioner,
Yukon Ombudsman and Information and Privacy Commissioner and
Criminal Lawyers’ Association Interveners
Indexed as: Alberta (Information and Privacy Commissioner) v. University of Calgary
2016 SCC 53
File No.: 36460.
2016: April 1; 2016: November 25.
Present: Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
on appeal from the court of appeal for alberta
Privacy — Investigation of complaints — Powers of Information and Privacy Commissioner — Production of documents — Solicitor‑client privilege — Dismissed employee filing complaint with Commissioner and seeking access to her personal employment information — Employer claiming solicitor‑client privilege over some documents — Whether statutory provision which requires public body to produce records to Commissioner “[d]espite . . . any privilege of the law of evidence” allows Commissioner to review documents over which solicitor‑client privilege is claimed — If so, whether Commissioner made reviewable error by ordering production of documents — Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 56(3).
Administrative law — Judicial review — Standard of review — Information and Privacy Commissioner — Standard of review applicable to Commissioner’s decision to compel production of records over which solicitor‑client privilege is asserted — Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 56(3).
In the context of a constructive dismissal claim, a delegate of the Information and Privacy Commissioner of Alberta ordered the production of records over which the University of Calgary had claimed solicitor‑client privilege. The delegate was acting in accordance with the Office of the Commissioner’s “Solicitor‑Client Privilege Adjudication Protocol”, which required the provision of a copy of “the records at issue” or two copies of “an affidavit or unsworn evidence verifying solicitor‑client privilege over the records” to substantiate the claim of solicitor‑client privilege. In compliance with the law and the practice regarding identification of solicitor‑client privileged documents in civil litigation in Alberta at that time, the University provided a list of documents identified by page numbers, along with a sworn affidavit indicating solicitor‑client privilege had been asserted over the records.
After a further request to substantiate the claim of privilege, the delegate issued a Notice to Produce Records under s. 56(3) of the Freedom of Information and Protection of Privacy Act (“FOIPP”). Under that section, a public body must produce required records to the Commissioner “[d]espite . . . any privilege of the law of evidence”. The University sought judicial review of the delegate’s decision to issue the Notice. On judicial review, the Commissioner’s decision was upheld, but on appeal, it was found that “any privilege of the law of evidence”, as used in s. 56(3), did not refer to solicitor‑client privilege.
Held: The appeal should be dismissed.
Per Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.: Whether s. 56(3) of FOIPP allows the review of documents over which solicitor‑client privilege is claimed is a question of central importance to the legal system as a whole and outside the Commissioner’s specialized area of expertise. The question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor‑client privilege is one that has potentially wide implications on other statutes. Therefore, the applicable standard of review is correctness for both (i) the decision that the Commissioner has the authority to require the production of records over which solicitor‑client privilege is asserted, and (ii) the decision to issue the Notice to Produce Records.
The expression “any privilege of the law of evidence” does not require a public body to produce to the Commissioner documents over which solicitor‑client privilege is claimed. Solicitor‑client privilege is no longer merely a privilege of the law of evidence, but a substantive right that is fundamental to the proper functioning of our legal system. The disclosure of documents pursuant to a statutorily established access to information regime, separate from a judicial proceeding, engages solicitor‑client privilege in its substantive, rather than evidentiary, context. 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. Section 56(3) does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor‑client privilege. This interpretive approach is not a renunciation of the modern approach to statutory interpretation, but recognizes legislative respect for fundamental values.
Reading s. 56(3) in the context of the statute as a whole supports the conclusion that the legislature did not intend to set aside solicitor‑client privilege. First, s. 27(1) of FOIPP unequivocally establishes that a public body may refuse to disclose “information that is subject to any type of legal privilege, including solicitor‑client privilege”. Second, this interpretation is coherent. “[P]rivilege of the law of evidence”, as referenced in s. 56(3), are a narrower category falling within the scope of the broader category of “legal privilege”, as laid out in s. 27(1). Read together, therefore, these two sections provide that a public body can refuse to disclose documents subject to any “legal privilege”, while the Commissioner can obtain production of those documents over which a “privilege of the law of evidence” is asserted in order to adjudicate the claims of privilege. Third, given its fundamental importance, one would expect that if the legislature had intended to set aside solicitor‑client privilege, it would have legislated safeguards to ensure that solicitor‑client privileged documents are not disclosed in a manner that compromises the substantive right or addressed whether disclosure of solicitor‑client privileged documents to the Commissioner constitutes a waiver of privilege with respect to any other person.
Lastly, 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. Although the delegate found that it was necessary to review the records because the University failed to present evidence of its claim of solicitor‑client privilege as required by the Protocol, the Protocol is not law. Rather, it is a guide established by the Commissioner to assist adjudicators and public bodies. At the time, the prevailing authority in Alberta in civil litigation allowed a party to bundle and identify solicitor‑client privileged documents by document numbers, and no evidence or argument was made to suggest that solicitor‑client privilege had been 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.
Per Cromwell J.: The express language and the full context of s. 56(3) of the Freedom of Information and Protection of Privacy Act demonstrate that the legislature intended to abrogate solicitor‑client privilege to the extent of permitting the Commissioner to order production of records over which solicitor‑client privilege is asserted when necessary to adjudicate the validity of that claim. Section 56(3) explicitly grants that authority “[d]espite . . . any privilege of the law of evidence”, and to hold that solicitor‑client privilege is a legal privilege but not a “privilege of the law of evidence” in FOIPP is not justified.
The grammatical and ordinary meaning of the words “any privilege of the law of evidence” in s. 56(3) includes solicitor‑client privilege. Solicitor‑client privilege is both an evidentiary privilege and a substantive principle, but, as the University is seeking immunity from forced production by virtue of the Commissioner’s statutory powers, the evidentiary privilege is at issue here. The fact that s. 27(1) of FOIPP specifically includes the words “solicitor‑client privilege” does not detract from this interpretation of s. 56(3) because these provisions perform different functions. Section 27(1) sets out a number of grounds upon which a public body can refuse to order disclosure, whereas s. 56 provides what the Commissioner can and cannot do in the context of conducting an inquiry. Nothing in either section can be read as saying that the Commissioner is prevented from ordering the production of documents subject to a claim of solicitor‑client privilege in the context of answering all questions of law and fact that arise in the course of an inquiry.
This interpretation is also supported by a number of contextual factors. First, the statutory scheme unambiguously supports the view that the legislature intended the Commissioner to have the powers required to decide whether or not records should be produced by a public body — including ruling on claims of privilege — subject to judicial review of the exercise of those powers. Specifically, FOIPP provides a detailed, self‑contained process for the disclosure of information to an applicant, and the Commissioner would not be able to fulfill this statutory mandate without the power to review a claim of solicitor‑client privilege.
Second, none of the factors that weigh against a finding that a statute abrogates solicitor‑client privilege are in play here: the Commissioner has adjudicative powers; the Commissioner does not appear on behalf of the complainant; and the language used in s. 56(3) is not open‑textured language governing production of documents. On the contrary, s. 56(3) expressly provides that the power to order production applies notwithstanding any privilege of the law of evidence.
Finally, the debates leading up to the enactment of the first version of FOIPP support an interpretation of s. 56(3) as abrogating solicitor‑client privilege, as does the fact that the same expression in the parallel British Columbia legislation clearly includes solicitor‑client privilege.
Even though the Commissioner has the authority to compel production for review of records over which solicitor‑client privilege is asserted and assuming, without deciding, that the correctness standard of review applies, she made a reviewable error to order production in the face of the evidence submitted in relation to the claim of privilege. The University’s claim of privilege complied with the requirements of Alberta civil litigation practice at the time, and it was a reviewable error for the Commissioner’s delegate to impose a more onerous standard on the University in relation to its assertion of privilege than that applicable in civil litigation before the courts. The evidence filed with the Commissioner clearly asserts that the documents are communications between solicitor and client which entails the seeking or giving of legal advice, and which is intended to be confidential by the parties.
Per Abella J.: The standard of review in this case should be reasonableness in accordance with this Court’s jurisprudence reviewing decisions of Information and Privacy Commissioners, including decisions involving solicitor‑client privilege. The question in this case does not fall within any of the categories which attract correctness review under Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. On the contrary, the Commissioner is interpreting her home statute, which includes the express mandate to consider the application of solicitor‑client privilege. This is classic “reasonableness review” territory.
But the Commissioner’s decision to order disclosure was unreasonable. The Commissioner should have exercised her discretion in a manner that interfered with solicitor‑client privilege only to the extent absolutely necessary to achieve the ends sought by her enabling legislation. In ordering disclosure, she did not sufficiently take into account the fact that the University provided adequate justification for solicitor‑client privilege, particularly in light of the laws and practices applicable in the civil litigation context in Alberta.
Cases Cited
By Côté J.
Applied: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Legal Services Society v. British Columbia (Information and Privacy Commissioner), 2003 BCCA 278, 226 D.L.R. (4th) 20; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; R. v. Gruenke, [1991] 3 S.C.R. 263; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809; Smith v. Jones, [1999] 1 S.C.R. 455; Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Solosky v. The Queen, [1980] 1 S.C.R. 821; Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32; R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; R. v. Barnier, [1980] 1 S.C.R. 1124; Ansell Canada Inc. v. Ions World Corp. (1998), 28 C.P.C. (4th) 60; Dorchak v. Krupka, 1997 ABCA 89, 196 A.R. 81.
By Cromwell J.
Applied: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574; referred to: Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Newfoundland and Labrador (Attorney General) v. Information and Privacy Commissioner (Nfld. and Lab.), 2011 NLCA 69, 314 Nfld. & P.E.I.R. 305; Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4th) 127; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Dorchak v. Krupka, 1997 ABCA 89, 196 A.R. 81; Canadian Natural Resources Ltd. v. ShawCor Ltd., 2014 ABCA 289, 580 A.R. 265; Solosky v. The Queen, [1980] 1 S.C.R. 821.
By Abella J.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574; Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809; Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381.
Statutes and Regulations Cited
Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A‑1.1, s. 52.
Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, ss. 2(c), (e), 7, 27, 53(1)(a), 56, 58, 59(1), (4), 65(1), 69(1), 70, 72(1), (2)(a), 73.
Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 44.
Freedom of Information and Protection of Privacy Act, S.A. 1994, c. F‑18.5, s. 54(3).
Freedom of Information and Protection of Privacy Amendment Act, 2003, S.B.C. 2003, c. 5, s. 15.
Personal Information Protection Act, S.A. 2003, c. P‑6.5, s. 38(3).
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 12 [repl. 2010, c. 23, s. 83], 12.1, 15.
Privacy Act, R.S.C. 1985, c. P‑21, s. 34(2) .
Public Inquiries Act, R.S.A. 2000, c. P‑39.
Public Inquiry Act, S.B.C. 2007, c. 9, s. 76.
Authors Cited
Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess., 23rd Leg., April 11, 1994, p. 1052.
Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess., 23rd Leg., April 18, 1994, pp. 1239‑40.
Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess., 23rd Leg., May 5, 1994, p. 1752.
Alberta. Office of the Information and Privacy Commissioner. “Solicitor‑Client Privilege Adjudication Protocol”, October 2008 (online: www.oipc.ab.ca/media/613544/practice_note_solicitor_client_privilege_protocol_oct2008.pdf).
Cross, Rupert. Cross on Evidence, 5th ed. London: Butterworths, 1979.
Dodek, Adam M. Solicitor‑Client Privilege. Markham, Ont.: LexisNexis, 2014.
Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada. Aurora, Ont.: Canada Law Book, 2006 (loose‑leaf updated August 2016, release 35).
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 4th ed. Markham, Ont.: LexisNexis, 2014.
Manes, Ronald D., and Michael P. Silver. Solicitor‑Client Privilege in Canadian Law. Toronto: Butterworths, 1993.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the Alberta Court of Appeal (Rowbotham, Bielby and Brown JJ.A.), 2015 ABCA 118, 602 A.R. 35, 647 W.A.C. 35, 12 Alta. L.R. (6th) 272, 81 Admin. L.R. (5th) 257, 382 D.L.R. (4th) 299, [2015] 7 W.W.R. 213, [2015] A.J. No. 348 (QL), 2015 CarswellAlta 574 (WL Can.), setting aside a decision of Jones J., 2013 ABQB 652, 90 Alta. L.R. (5th) 94, 574 A.R. 137, 66 Admin. L.R. (5th) 254, [2013] A.J. No. 1233 (QL), 2013 CarswellAlta 2198 (WL Can.). Appeal dismissed.
Glenn Solomon, Q.C., and Elizabeth Aspinall, for the appellant.
Robert W. Calvert, Q.C., and Michael D. A. Ford, Q.C., for the respondent.
David Phillip Jones, Q.C., and Victoria A. Jones, for the intervener the Law Society of Alberta.
Written submissions only by Michael A. Feder and Emily MacKinnon, for the intervener the British Columbia Freedom of Information and Privacy Association.
Lawren Murray and David Goodis, for the intervener the Information and Privacy Commissioner of Ontario.
Ivan Bernardo, Q.C., Gerald Chipeur, Q.C., and Jill W. Wilkie, for the intervener the Information and Privacy Commissioner for British Columbia.
Andrew A. Fitzgerald, for the intervener the Information and Privacy Commissioner for the Province of Newfoundland and Labrador.
Perry R. Mack, Q.C., for the intervener the Advocates’ Society.
Mahmud Jamal and David Rankin, for the intervener the Federation of Law Societies of Canada.
Michele H. Hollins, Q.C., James L. Lebo, Q.C., and Jason L. Wilkins, for the intervener the Canadian Bar Association.
Marlys A. Edwardh, Daniel Sheppard, Regan Morris, Diane Therrien and Aditya Ramachandran, for the interveners the Information Commissioner of Canada, the Privacy Commissioner of Canada, the Manitoba Ombudsman, the Northwest Territories Information and Privacy Commissioner, the Nova Scotia Information and Privacy Commissioner [Review Officer], the Nunavut Information and Privacy Commissioner, the Saskatchewan Information and Privacy Commissioner and the Yukon Ombudsman and Information and Privacy Commissioner.
Written submissions only by Brian Gover, Justin Safayeni and Carlo Di Carlo, for the intervener the Criminal Lawyers’ Association.
The judgment of Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. was delivered by
Côté J. —
I. Overview
[1] This case involves a judicial review of a decision pursuant to the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 (“FOIPP”). A delegate of the Information and Privacy Commissioner of Alberta (“Commissioner”) ordered the production of records over which solicitor-client privilege was claimed in order to verify that the privilege was properly asserted. At the heart of this appeal is whether s. 56(3) of FOIPP, which requires a public body to produce required records to the Commissioner “[d]espite . . . any privilege of the law of evidence”, allows the Commissioner and her delegates to review documents over which solicitor-client privilege is claimed.
[2] I conclude that s. 56(3) does not require a public body to produce to the Commissioner documents over which solicitor-client privilege is claimed. As this Court held in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, 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. Therefore, I am of the view that solicitor-client privilege is not captured by the expression “privilege of the law of evidence”. Moreover, a reading of s. 56(3) in the context of the statute as a whole also supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. Further, even if s. 56(3) could be construed as authorizing the Commissioner to review documents over which privilege is claimed, this was not an appropriate case in which to order production of the documents for review. Consequently, I would dismiss the appeal.
II. Facts
[3] The University of Calgary (“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.
[4] 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. A delegate of the Commissioner (“delegate”) conducted an inquiry on the matter, acting in accordance with the Office of the Commissioner’s “Solicitor-Client Privilege Adjudication Protocol” (“Protocol”) (online). The Protocol states how, according to the Office of the Commissioner, claims of solicitor-client privilege can be substantiated without revealing the details of the communications. Basing himself on the Protocol, the delegate issued a Notice of Inquiry instructing the University to provide a copy of “the records at issue” or two copies of “an affidavit or unsworn evidence verifying solicitor-client privilege over the records”.
[5] In August 2010, 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. Later, the University further provided a letter from its Provost and Vice-President (Academic), asserting solicitor-client privilege over the records.
[6] In September 2010, the delegate directed the University to substantiate its claim of solicitor-client privilege by either providing him with a copy of the records, or providing additional information regarding the records at issue, including, for example, the date and length of the record, and some information regarding the author and addressee.
[7] The University did not comply with either direction. As a result, the delegate issued a Notice to Produce Records under s. 56(3) of FOIPP, requiring the University to produce the documents for review. Section 56(3) reads:
(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).
[8] 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 is the matter on appeal.
[9] It is noteworthy that the applicant, the former employee, is not a party to the present appeal. Her litigation against the University concluded in 2012 and she has had no involvement in the matter since then (2012 ABQB 342, 545 A.R. 110). Therefore, the claim for production is moot at this time.
III. Decisions Below
A. Information and Privacy Commissioner of Alberta
[10] In his decision rendered October 20, 2010, the delegate required the University to produce a copy of the records over which solicitor-client privilege was claimed, to allow the delegate to determine whether solicitor-client privilege had been properly asserted. The delegate concluded that this case was an exceptional one, as the University of Calgary had failed to present adequate evidence of its claim of solicitor-client privilege, and therefore it was necessary to review the records in question to determine whether the University had properly withheld the records.
B. Alberta Court of Queen’s Bench, 2013 ABQB 652, 574 A.R. 137
[11] On judicial review, Justice Jones first concluded that the appropriate standard of review was correctness. He applied the modern approach to statutory interpretation and found that s. 56(3) of FOIPP permits the Commissioner to compel the production of disputed records to verify claims of solicitor-client privilege. He reviewed the jurisprudence on similar provisions in other statutes, and concluded that the Alberta legislature’s intent in enacting FOIPP was clear. The application judge also found that the provisions of FOIPP do not work together effectively unless the Commissioner has the power to compel the production of information over which privilege is alleged since FOIPP provides no other mechanism to review that type of claim.
[12] The application judge then 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. Overall, he concluded the delegate’s approach established “a framework that interferes with the confidentiality and privilege only to the extent absolutely necessary” (para. 233).
C. Alberta Court of Appeal, 2015 ABCA 118, 602 A.R. 35
[13] 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. It agreed with the application judge that the applicable standard of review was correctness. Regarding statutory interpretation, however, the Court of Appeal held that Blood Tribe ousts the modern approach to statutory interpretation where solicitor-client privilege is at stake. Instead, the rule of strict construction applies, which requires clear, explicit and specific reference to solicitor-client privilege.
[14] Following the rule of strict construction, the Court of Appeal concluded that an inference would need to be drawn to conclude that “any privilege of the law of evidence” refers to solicitor-client privilege. Therefore, the language of s. 56(3) was found to be not sufficiently specific to evince clear legislative intent.
[15] The Court of Appeal also observed that a number of contextual factors supported its conclusion. First, neither the Commissioner nor her delegate needed to be a lawyer and could lack the legal training necessary to adjudicate claims of solicitor-client privilege. Second, FOIPP authorized the Commissioner to disclose information relating to the commission of an offence to the Minister of Justice and the Attorney General. Third, s. 38(3) of the Personal Information Protection Act, S.A. 2003, c. P‑6.5, which applies to law firms, also permits the Commissioner to require the production of records “[n]otwithstanding . . . any privilege of the law of evidence”. The Court of Appeal noted that allowing solicitor-client privilege to be infringed in that context would be undesirable.
IV. Issues
[16] This appeal raises the following questions:
1. What is the appropriate standard of review applicable to the Commissioner’s decision?
2. What approach to statutory interpretation applies to provisions purporting to abrogate, pierce, set aside or infringe solicitor-client privilege?
3. Does s. 56(3) of FOIPP require a public body to produce to the Commissioner records over which solicitor-client privilege is claimed?
V. Submissions of the Parties
A. Information and Privacy Commissioner of Alberta
[17] The Commissioner argues that the appropriate standard of review is reasonableness. Regarding statutory interpretation, she submits a purposive analysis should be applied. In brief, the Commissioner takes the position that s. 56(3) of FOIPP expressly grants her the power to review records over which solicitor-client privilege is claimed. She argues that solicitor-client privilege is a privilege of the law of evidence; thus the words “any privilege of the law of evidence” in s. 56(3) clearly abrogate solicitor-client privilege. The Commissioner submits that the substantive nature of solicitor-client privilege does not preclude this interpretation, and she argues that a contextual analysis supports her position.
B. Board of Governors of the University of Calgary
[18] In contrast, the University’s Board of Governors argues that the appropriate standard of review is correctness. Regarding statutory interpretation, it submits that express, clear and precise words are necessary to permit the Commissioner to pierce solicitor-client privilege. The University’s Board of Governors’ primary argument is that s. 56(3) does not contain express words to that effect since solicitor-client privilege has been elevated from a rule of evidence to a substantive and fundamental rule of law. In the alternative, the University’s Board of Governors submits that even if s. 56(3) could be construed as expressly giving the Commissioner the power to pierce solicitor-client privilege, disclosure was not appropriate in this case. The University’s Board of Governors also argues that a contextual analysis supports its position.
VI. Analysis
A. Standard of Review
[19] The application judge and the Court of Appeal concluded that the applicable standard of review was correctness. I agree.
[20] Whether FOIPP allows solicitor-client privilege to be set aside is a question of central importance to the legal system as a whole and outside the Commissioner’s specialized area of expertise. As this Court said in Blood Tribe, solicitor-client privilege is “fundamental to the proper functioning of our legal system” (para. 9). It is also a privilege that has acquired constitutional dimensions as both a principle of fundamental justice and a part of a client’s fundamental right to privacy (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 41; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 46; see also Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 17). Further, as the Court of Appeal observed, the question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on other statutes.
[21] In Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, Rothstein J., writing for the Court, discussed how a question of statutory interpretation that does not have wide implications on other statutes would not be of central importance to the legal system as a whole and would thus attract a reasonableness standard. Paragraph 60 of National Railway reads as follows:
This is also not a question of central importance to the legal system as a whole. The question at issue centres on the interpretation of s. 120.1 of the [Canada Transportation Act, S.C. 1996, c. 10 (“CTA ”)]. The question is particular to this specific regulatory regime as it involves confidential contracts as provided for under the CTA and the availability of a complaint-based mechanism that is limited to shippers that meet the statutory conditions under s. 120.1(1) . This question does not have precedential value outside of issues arising under this statutory scheme.
Conversely, it follows that where — as in this case — the question does have wide implications on other statues, the appropriate standard of review is correctness.
[22] In addition, there is nothing to suggest that the Commissioner has particular expertise with respect to solicitor-client privilege, an issue which has traditionally been adjudicated by courts (see Legal Services Society v. British Columbia (Information and Privacy Commissioner), 2003 BCCA 278, 226 D.L.R. (4th) 20, at para. 25). Therefore, the applicable standard of review is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60), for both (i) the decision that the Commissioner has the authority to require the production of records over which solicitor-client privilege is asserted, and (ii) the decision to issue the Notice to Produce Records.
[23] My colleague Justice Abella thinks otherwise. Drawing from six judgments of this Court involving disclosure decisions by Information and Privacy Commissioners, she suggests that there is a “clear lineage” of cases dictating that the standard of review in this appeal should be reasonableness. With respect, I cannot agree.
[24] Of the six decisions identified by Abella J., only two mention solicitor-client privilege. One of them is Blood Tribe, in which Binnie J. in effect reviewed the impugned decision on the standard of correctness, although he did not expressly state so. The other is Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, which addressed, as a secondary issue, whether the Assistant Commissioner properly exercised his discretion under a provision explicitly permitting him to exempt from disclosure documents subject to solicitor-client privilege. That was it. Resolution of that question had few ramifications on the principle of solicitor-client privilege and its application beyond the particular exercise of discretion in that case.
[25] The question here is different. It does not just ask whether the Commissioner exercised her discretion appropriately in the instant case. It asks whether the phrase “privilege of the law of evidence” suffices to identify, for the purpose of abrogation, the substantive features of solicitor-client privilege. This necessitates an inquiry into both the substantive and evidentiary qualities of the privilege.
[26] The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege concerned with the protection of a relationship that has a central importance to the legal system as a whole. In R. v. Gruenke, [1991] 3 S.C.R. 263, Chief Justice Lamer described its rationale as follows:
The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication . . . . [Emphasis added; p. 289.]
[27] Having determined that the applicable standard of review is correctness, I now proceed to apply this standard to the decision at hand.
B. Principles of Statutory Interpretation
[28] 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 unambiguo