SCC To Consider Provincial Privacy Commissioner Powers To Compel Production Of Privileged Documents

The Supreme Court of Canada is revisiting the issue of whether a privacy commissioner can force disclosure of documents where solicitor-client privilege is asserted.

In 2008, the Supreme Court considered a privacy commissioner's powers under Canada's federal private sector legislation and concluded (in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44) that the federal privacy commissioner could not compel the production of documents over which privilege is asserted . This time around, the court is examining the privacy commissioner's powers under provincial privacy legislation, which has language that differs from that found in the federal privacy legislation.

On Oct. 29, 2015, Canada's top court granted leave to appeal in University of Calgary v JR, 2015 ABCA 118. In that decision, the Alberta Court of Appeal reversed the lower court's order that documents be produced to the Privacy Commissioner by the university notwithstanding that the university asserted privilege over them. That decision was detailed in McCarthy Tétrault's Canadian Appeals Monitor blog here.

Background

JR had sued the University for wrongful dismissal and other causes of action. In the course of the litigation, JR made an access to information request under section 7 of the province's Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 ("FOIPPA"). The University disclosed some, but not all, of the records, withholding records it asserted were subject to solicitor-client privilege. Following unsuccessful mediation, the Alberta Privacy Commissioner commenced a formal inquiry through an appointed delegate into whether the University was exempt...