Canadian Courts Refuse To Settle For Weak Privacy Rights: 'Imperial Oil Limited v Alberta'

Overview

Last week, the Supreme Court of Canada ("SCC") dismissed leave to appeal the Alberta Court of Appeal ("ABCA") decision in Imperial Oil Limited v Alberta., thereby endorsing the ABCA's approach to settlement privilege in the context of applications under the Freedom of Information and Protection of Privacy Act ("FOIPP").1 Settlement privilege is alive, well, and strongly protected in Alberta, even in the more public regulatory context, as long as parties fall within the exceptions set out in ss. 16 and 27 of FOIPP.

Facts

Imperial Oil Limited ("Imperial") operated a refinery in the Lynnview Ridge area of southeast Calgary until it was decommissioned in 1975. Petroleum and lead contamination was discovered in the lands after it had been developed into a residential area. In the early 2000s, environmental protection orders relating to the cleanup were issued, some of which Imperial appealed. After a mediation process, Imperial and the Alberta Environment Director signed a Remediation Agreement on March 31, 2005 (the "Remediation Agreement").

The City of Calgary (the "City"), as a significant landowner in the area and the municipality that approved the Lynnview subdivision, applied under FOIPP for a copy of the Remediation Agreement. Alberta Environment refused to release the Remediation Agreement on the basis of confidentiality and settlement privilege, and the City applied to the Alberta Information and Privacy Commissioner (the "Commissioner"), who ordered the agreement's release. Imperial applied for judicial review of the Commissioner's decision, which was quashed by the Alberta Court of Queen's Bench. The ABCA agreed, finding that the Remediation Agreement was privileged and confidential on the basis of ss. 16 and 27 of FOIPP, which provide exceptions to production on the basis of confidentiality and privilege. On February 19, 2015, the SCC dismissed leave to appeal the ABCA decision.

Alberta Court of Appeal Decision

The ABCA struck the appeal on a narrow issue: the court found that the Commissioner had no standing to appeal a judicial review decision quashing the Commissioner's order.2 However, the court found that other substantive issues on appeal warranted further comment. The ABCA noted that the Remediation Agreement specifically referred to confidentiality and privilege, but also highlighted the applicability of common law settlement privilege.3

Section 16 of FOIPP provides exceptions to disclosure on the basis of...