Alberta Court Of Appeal Affirms Sanctity Of Solicitor-Client Privilege Under FOIPPA

In University of Calgary v JR, 2015 ABCA 118, the Alberta Court of Appeal strongly affirmed the central importance of solicitor-client privilege to the proper functioning of the legal system. At issue was whether the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 [FOIPPA], authorized the Alberta Privacy Commissioner (or her delegate) to compel a public body to produce to the Commissioner records over which solicitor-client privilege is claimed in order to determine the veracity of the privilege claim. The Court of Appeal held that the Commissioner does not have such power.

The issue arose in the context of a wrongful dismissal claim by JR against her former employer, the University of Calgary. In addition to the usual exchange of records in the course of litigation, JR also made an access to information request under FOIPPA for all records in the University's possession relating to her. In response, the University produced some records, but objected to producing others on the basis of solicitor-client privilege. JR asked the Commissioner to review the University's response to the access request, and in particular the University's assertion of solicitor-client privilege.

The Commissioner appointed a delegate to conduct a formal inquiry to the University's response. The delegate requested that the University produce un-redacted copies of the records over which privilege was claimed. When the University refused this request, the Commissioner's delegate issued a "notice to produce records" under subsections 56(2) and (3) of FOIPPA, which allow the Commissioner to compel the production of records "despite... any privilege of the law of evidence" (the Notice). The University's application for judicial review of the Notice was dismissed by a chambers judge.

On appeal, the Court reversed the chamber judge's decision, and held that s 56 of FOIPPA does not authorize the Commissioner to infringe solicitor-client privilege. The Court held that any statutory language purporting to abrogate solicitor-client privilege must be interpreted restrictively. Following the Supreme Court of Canada's decision in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, the Court set out the following three principles for determining whether a statutory enactment authorizes the infringement of solicitor-client privilege:

Statutory language must be clear, unequivocal, and unambiguous, Statutory language cannot be taken as...