Alberta (Information and Privacy Commissioner) v University of Calgary – Protection of Solicitor-Client Privilege

The Supreme Court of Canada (“SCC”) recently decided two cases on solicitor-client privilege and litigation privilege in Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 [Lizotte] and Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53 [Alberta]. These judgments solidify the SCC’s safeguarding of solicitor-client and litigation privilege, and establish a higher threshold for legislative bodies to retract their implementation. In circumstances where a statutory decision maker or regulator compels the production of documents when a claim of privilege is set out, the two judgments set the requirement that a close examination of the statutory provision takes place in order to permit the production demand. As per the SCC, in order to demand the production of documents for either solicitor-client or litigation privilege, the legislative language must be “clear, explicit and unequivocal.” In both judgments, the legislative language failed to reach this higher threshold.

The main issue in Alberta was whether the statutory language (“[d]espite […] any privilege of the law of evidence”) was sufficiently clear, explicit, and unequivocal to abrogate solicitor-client privilege, and therefore require the Commission to produce these documents. Ultimately, Alberta establishes the language of “clear, explicit and unequivocal” as the test to abrogate solicitor-client privilege. Here the majority came to the conclusion that the legislation was not sufficiently clear and explicit to abrogate the privilege. The minority, however, per Justice Cromwell, concluded that it was.

Section 56(3) of the Alberta Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 [FOIPP] states that a public body must produce to the Information and Privacy Commissioner (“Commissioner”) records on demand “[d]espite any other enactment or any privilege of the law of evidence.” In this case, a Delegate of the Commissioner (“Delegate”) issued a Notice to Produce Records to the University of Calgary, over which the university had claimed solicitor-client privilege.

The Delegate’s decision to issue the notice was initially upheld. On appeal, however, the Alberta Court of Appeal held that “any privilege of the law of evidence” did not refer to solicitor-client privilege. The Commissioner’s appeal was dismissed by the Supreme Court. Justice Côté found that the legislation did not contain clear, explicit, and unequivocal language. This finding was due to the ambiguous language used in the statute, as well as the fact that the Notice to Produce engaged solicitor-client privilege in its substantive, rather than evidentiary role.

She also set out three reasons as to why the statutory scheme of FOIPP reinforced that privilege was not abrogated.  First, section 27 of FOIPP sets out an example of solicitor-client privilege as a type of “legal privilege” upon which a public body may refuse to disclose information to a freedom of information applicant.  Despite the fact that the legislature considered solicitor-client privilege, they intentionally decided not to use the exact language in section 56(3).  Second, the legislature noted the difference between “legal privilege” and “privilege of the law of evidence,” as evidenced by the comparison between section 27, which was intended to be broader than section 56(3) and not limited to evidentiary privileges.  Finally, Justice Côté explained that the legislature never intended to forego solicitor-client privilege because it would have legislated safeguards to define matters as to when and to what extent privilege may be set aside, and to address the issue of waiver.

According to Justice Côté, the emphasis on requiring clear and explicit language is imperative to fundamental values, including solicitor-client privilege. The “clear, explicit and unequivocal test” is grounded in the modern, purposive-contextual approach to statutory interpretation and not the previously used plain meaning rule. The words “solicitor-client privilege” need not appear verbatim, but there needs to be a high standard of clarity. Justice Cromwell deduced in his concurring opinion that solicitor-client privilege also constitutes evidentiary privilege.  Nevertheless, he added that a reviewable error was made by the Delegate by ordering the production despite evidence relating to the claim of privilege.

In addition to these findings, Justices Cromwell, Côté and Abella concluded that, pragmatically, a legislation that aims to abrogate privilege would be a legal error reviewable on a standard of correctness.  Furthermore, Justice Abella added that she would have used a different standard of review: reasonableness. Under reasonableness, Justice Abella would have held that the Notice of Produce was issued by the Delegate in an unreasonable manner. The reasons provided by Justice Abella on the delegate’s unwarranted request to review the documents included: 1) the absence of evidence suggesting that the claim was insufficient or incorrect; and 2) the fact that the University made its claim for solicitor-client privilege in congruence with the effect of Alberta’s governing law.

Overall, Alberta is an important chapter in the evolution of the law of privilege. Ultimately, the decision will mean that if a legislature intends to abrogate solicitor-client or litigation privilege, clear and express language is strictly required. Going forward, parties should tread cautiously in producing privileged documents and carefully review whether the statutory language meets the elevated standard applied by the Court.

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