Solicitor-Client Privilege Trumps the Privacy Commissioner in Canada v. Blood Tribe

Last week, the Supreme Court released its judgment in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44. Under the banner of access to justice, Binnie J., speaking for a unanimous court, ruled that section 12 of the Personal Information Protection and Electronic Documents Act (2005 c. 5) (“PIPEDA”) does not furnish the Privacy Commissioner with the statutory authority to “pierce” solicitor client privilege. In the process of reaffirming the primacy of solicitor-client privilege, however, the Supreme Court may have imperiled the ability of the Privacy Commissioner to fulfill her mandate of “protect[ing] and promot[ing] the privacy rights of individuals.”

Facts and Procedural History

Upon her dismissal from the Blood Tribe Department of Health, Annette Soup filed a complaint with the Privacy Commissioner seeking the production of her personal employment file. Soup suspected that her former employer had relied on improperly obtained and inaccurate information to justify her dismissal. The Privacy Commissioner in turn requested Ms. Soup’s complete employment file from the Blood Tribe, who complied with the Commissioner’s request but claimed solicitor-client Privilege with respect to certain documents. In response, the Commissioner ordered production of the privileged documents on the basis of s. 12 of PIPEDA, which, among other things, allows the Commissioner to compel production both of any documents that could be comparably obtained by a superior court of record (s. 12(1)(a)), and of any “evidence and other information . . . whether or not it is or would be admissible in a court of law” (s. 12(1)(c)).

The Blood Tribe applied for judicial review of the Commissioner’s decision. Although the trial division of the Federal Court sided with the Privacy Commissioner, the Federal Court of Appeal overturned the trial judge’s decision, vacating the Privacy Commissioner’s order for production of the impugned privileged documents. The Privacy Commissioner appealed, and the matter proceeded to the Supreme Court.

Solicitor-Client Privilege and PIPEDA

Writing for a unanimous court, Justice Binnie upheld the decision of the Federal Court of Appeal, finding that the Privacy Commissioner’s authority to compel information under section 12 of PIPEDA does not extend to information protected under solicitor-client privilege. Broadly speaking, Binnie J. relied on two related arguments, first that principles of statutory interpretation militated against finding that s. 12 of PIPEDA superseded solicitor-client privilege, and second, that the Privacy Commissioner`s post is an administrative as opposed to adjudicative one.

At the outset, Binnie J. identified the fundamental importance of a robust conception of solicitor-client privilege to a well-functioning legal system. “While solicitor-client privilege may have started life as a rule of evidence”, he explained, “it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31, at paras. 5 and 31; Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36; Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8.”

In light of this, Binnie J. continued, drawing in particular on Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, and Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, “open-textured language governing production of documents will be read not to include solicitor-client documents.”

The importance of preserving the sanctity of solicitor-client privilege was amplified in the present case by the sweeping nature of the statutory grant of authority claimed by the Privacy Commissioner:

The only reason the Privacy Commissioner gave for compelling the production and inspection of the documents in this case is that the employer indicated that such documents existed. She does not claim any necessity arising from the circumstances of this particular inquiry. The Privacy Commissioner is therefore demanding routine access to such documents in any case she investigates where solicitor-client privilege is invoked.

Such a broad authority was especially inconsistent with the Privacy Commissioner’s role as “an administrative investigator not an adjudicator.” Binnie J. explained:

Client confidence is the underlying basis for the privilege, and infringement must be assessed through the eyes of the client. To a client, compelled disclosure to an administrative officer, even if not disclosed further, would constitute an infringement of the confidentiality.

Moreover, Binnie J. rejected the Privacy Commissioner’s argument that either s. 12(1)(a) or 12(1)(c) of PIPEDA disclosed the authority to override solicitor-client privilege. On a general level, he argued that:

… a court’s power to review a privileged document in order to determine a disputed claim for privilege does not flow from its power to compel production. Rather, the court’s power to review a document in such circumstances derives from its power to adjudicate disputed claims over legal rights. The Privacy Commissioner has no such power.

Binnie J. also looked at the language of the impugned sections. S. 12(1)(a), he argued, amounted to a “general production provision” which, in light of the prerogative to read statutes restrictively as relates to solicitor-client privilege was insufficient to compel production of information protected under solicitor-client privilege.

With respect to s. 12(1)(c), Binnie J. found that the authority to “receive and accept evidence” (emphasis added) fell short of providing the right to compel evidence. Therefore, Binnie J. concluded that s. 12(1)(c) did not furnish the Privacy Commissioner with the authority to obtain documents protected under solicitor-client privilege.

Solicitor-Client Privilege v. The Privacy Commissioner

The Supreme Court’s preoccupation with the protection of solicitor-client privilege in Blood Tribe is laudable. However, in my respectful opinion, the court has unnecessarily eaten away at the Privacy Commissioner`s quasi-judicial function.

The constantly fluctuating state of information and privacy in Canada is such that it makes sense to vest a specialized body, such as the Privacy Commissioner, with quasi-judicial powers. Although the Supreme Court’s decision in Blood Tribe did not explicitly strip the Privacy Commissioner of any authority, (save, of course, to compel production of solicitor-client privileged information), by stressing that the Commissioner is nothing more than an administrative officer, the court may have undermined the Commissioner’s overall authority. It would have been possible for the court to maintain the primacy of solicitor-client privilege without assuming such an antagonistic posture toward the Privacy Commissioner.

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