Solicitor-Client Privilege v. the Privacy Commissioner in Blood Tribe Development of Health v. Canada
Employers today are able to collect more information about their employees then ever before. As such, the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”), the act that governs the collection, use and disclosure of personal information by private actors, has become an increasingly important guarantor of individual privacy rights. This month, when it hears Blood Tribe Department of Health v Canada (Privacy Commissioner), 2006 FCA 334, the Supreme Court will have the opportunity to determine what sort of interpretation PIPEDA receives.
The case stems from a Federal Court of Appeal judgment in which Malone J.A., writing for a unanimous court, overturned the trial judge’s finding that the Privacy Commissioner had the authority to compel production of documents over which solicitor-client privilege was claimed in order to effectively complete her statutory investigative role. In making such a finding, the Federal Court trial judge accorded a broad and purposive interpretation to PIPEDA, one that was ultimately rejected by the Federal Court of Appeal in favour of a more restrictive approach.
After being dismissed from the Blood Tribe Department of Health, Annette Soup filed a complaint with the Privacy Commissioner seeking access to her personal employment file, part of which included correspondence between the Department of Health and its solicitors. When the Commissioner requested Ms. Soup’s employment file from the Department of Health, it was provided, but without the solicitor-client correspondence. The Privacy Commissioner responded by ordering production of the withheld documents pursuant to paragraphs 12(1)(a) and 12(1)(c) of PIPEDA. In response to this, the Department of Health brought an application for judicial review, challenging the legality of the Commissioner’s order.
Competing Interpretations of PIPEDA in the Federal Court and the Federal Court of Appeal
The impugned section of PIPEDA reads:
12.(1) The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may,
(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;
(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law.
Also noteworthy is section 9(3) of PIPEDA, which outlines when a private organization can refuse to produce documents protected by solicitor-client privilege:
9.(3) … an organization is not required to give access to personal information only if,
(a) the information is protected by solicitor-client privilege;
In light of “the central role of the Privacy Commissioner in achieving the important objects of the legislative scheme,” opined Mosley J. of the Federal Court, section 12 “should be given a broad and purposive interpretation.” Interpreting s. 12 of PIPEDA in this way, Mosley J. found that the Privacy Commissioner had the authority to compel production of documents protected by solicitor-client privilege. To support this finding, he pointed to the adjudicative authority of the Commissioner, referring specifically to the analogy drawn in section 12(1)(a) between the investigative authority of the Privacy Commissioner and that of a superior court justice.
Mosley J. was careful to stress that solicitor-client privilege was not extinguished by the Privacy Commissioner’s section 12, PIPEDA authority. Rather, in light of the nature of the Privacy Commissioner’s authority, solicitor-client privilege simply did not apply to the Commissioner. In other words, third parties, in Mosley J.’s view would not be able to rely on the provision of privileged information to the Privacy Commissioner as evidence that solicitor-client privilege was not in play.
The Federal Court of Appeal took issue with Justice Mosley’s findings. Writing on behalf of a unanimous court, Malone J.A. held that socilicitor-client privilege was presumptively inviolate, and furthermore that no exception to it was disclosed in PIPEDA. Instead of the purposive approach to section 12 of PIPEDA endorsed by the trial division of the Federal Court, Malone J.A. opted for a restrictive interpretation. To support this finding, he relied on the Supreme Court’s ruling in Pritchard v Ontario (Human Rights Commission),  1 SCR 809, which held that solicitor-client privilege could only be abrogated upon an express statutory provision to that effect.
Unlike Mosley J., Malone J.A. also registered concern at the prospect that the Privacy Commissioner might obtain privileged documentation and disclose it to third parties. Section 20(5) of PIPEDA allows the Commissioner to disclose to the Attorney General “information relating to the commission of an offence against any law of Canada or a province on the part of an officer or employee of an organization if, in the Commissioner’s opinion, there is evidence of an offence.” To be sure, Malone J.A. admitted that section 20(1) of PIPEDA bars the Commissioner from disclosing information during an investigation. However, taken in tandem with Justice Mosley’s finding that solicitor-client privilege did not apply to the Privacy Commissioner, section 20(5)
ultimately requires Canadians to trust that the Commissioner will always exercise her discretion prudently on matters involving solicitor-client privilege…. The prospect that solicitor-client documents might make their way into the hands of public law enforcement officers [could] undermine the confidence and candor of Canadians when dealing with their lawyers.
The Supreme Court
In Blood Tribe, the Supreme Court of Canada will have the opportunity to determine whether or not the Privacy Commissioner’s investigative authority is delimited by solicitor-client privilege. In so doing, it will have to choose between a broad and purposive and a restrictive approach to interpreting Section 12 of PIPEDA. How it chooses in this regard could have a profound effect on the nature and extent of the Privacy Commissioner’s legislative authority.