Solicitor-Client Privilege Wins Again Court Of Appeal Endorses Restrictive Statutory Interpretation In University Of Calgary v JR

The privileged position that solicitor-client privilege occupies in our legal system was recently reiterated and reinforced in the context of access to information requests in University of Calgary v JR. On April 2, 2015, the Alberta Court of Appeal considered the authority delegated to the Office of the Information and Privacy Commissioner ("OIPC") as it went head to head against solicitor-client privilege.1

Overview

In University of Calgary v JR, the Court of Appeal considered the appeal from a chambers judge's decision ruling in favour of the OIPC regarding its demand that the University to produce records over which it asserted privilege, pursuant to an access to information request made by JR in 2008.2

JR had commenced a wrongful dismissal claim in 2008 against the University, which was eventually resolved in JR v University of Calgary by the Court of Queen's Bench in 2012.3 At the same time, JR had also made an access to information request pursuant to s. 7 of the Alberta Freedom of Information and Protection of Privacy Act ("FOIPPA"). In the request, JR sought all relevant emails, file information, letters, records of discussion, third party correspondence, personal notes, and internal meeting notes in the University's possession. The University disclosed some documents, but withheld certain records on the basis that they were protected by solicitor-client privilege.

Office of the Information and Privacy Commissioner

The Information and Privacy Commissioner (the "Commissioner") commenced a formal inquiry, appointing a delegate with inquiry powers pursuant to s. 61 of FOIPPA. In the course of this inquiry, the University was asked to produce unredacted copies of the requested records over which it was asserting privilege, for the purpose of verifying the claim of privilege. The delegate invoked s. 56 of FOIPPA in issuing a "notice to produce records", 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..."

The University sought judicial review of the delegate's decision to issue the notice to produce.

Court of Queen's Bench

The chambers judge found that the plain meaning of s. 56 allowed the Commissioner to compel the production of records, despite the privilege asserted by the University. The University appealed the decision, arguing that the chambers judge erred in interpreting s...