Does 'Privilege Of The Law Of Evidence' Include Solicitor-Client Documents?

A recent appellate case holds freedom of information rulings cannot override a party's claim of solicitor-client privilege.1 The Supreme Court of Canada has granted leave to appeal. 2 Will the Supreme Court empower Alberta's Information and Privacy Commissioner or, instead, buttress protections of privilege?

The Facts

The facts in University of Calgary v R. (J.) relate to an access request made by an individual to the University of Calgary under Alberta's Freedom of Information and Protection of Privacy Act ("FOIPPA"). The requester sought records in the University's possession which related to her while she was involved in a civil action against the University.

The University withheld certain records from the requester on the basis of solicitor-client privilege. The requester asked Alberta's Information and Privacy Commissioner to review the University's response. Ultimately, the Commissioner's delegate3 sought to compel the records over which the University asserted solicitor-client privilege.

The Commissioner argued that it had authority to compel such production pursuant to 56(3) of FOIPPA, which states:

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).

The Alberta Court of the Queen's Bench Decision

A Chambers Judge of the Alberta Court of the Queen's Bench was satisfied using a "modern approach" to interpretation of FOIPPA that the records should be released to the requester. 4 The modern approach requires consideration of both a contextual and purposive analysis to determine the Legislature's intent. 5 The Chambers Judge reasoned that section 56(3) unambiguously authorizes the Commissioner to compel production of any records, including those subject to solicitor-client privilege. The Chambers Judge also held that a strict approach to statutory intrusions into solicitor-client privilege should not be applied at first instance, unless there is ambiguity. 6 Lastly, the Chambers Judge held that the ordinary meaning of section 56(3) was that the Commissioner had the power to compel the production of records subject to an assertion of solicitor-client privilege. 7

The Alberta Court of Appeal Grants the Appeal

The University appealed the order forcing them to produce documents it alleged were solicitor-client privileged to the Court of Appeal.

The principal issue in the Court of Appeal's...