Decision: Blood Tribe (Dept. of Health) v. Canada (Privacy Commissioner)

The Federal Court of Canada has been given the opportunity to consider the powers of the Privacy Commissioner under PIPEDA to compel the production of information for which solicitor-client privilege is claimed. In Blood Tribe (Dept. of Health) v. Canada (Privacy Commissioner), Justice Mosley concluded that the Commissioner does have the power to compel information for the purposes of determining whether it is privileged:

"[58] Having regard to the overall scheme of the statute and the Commissioner's responsibility to conduct an effective investigation, the principles enunciated by the Supreme Court of Canada in Lavallee do not, in my view, require that section 12 of the PIPED Act be given the restrictive interpretation called for by the applicant. The production order issued by the Commissioner will not limit or deny any solicitor-client privilege that the applicant may enjoy in the questioned documents. I am satisfied that in order to complete her investigation it is necessary that the claim of privilege be assessed by the Commissioner to determine whether it properly applies to the questioned documents or not. That will not prevent the applicant from continuing to assert the claim in any other proceedings that may arise in relation to the complaint.

[59] Accordingly, the Commissioner correctly exercised her authority to issue the production order and this application will be dismissed. As the question of interpretation of the scope of the PIPED Act in relation to solicitor-client privilege appears to have arisen for the first time in these proceedings, I will exercise my discretion to make no order of costs in favour of the successful party."

This was a judicial review of the Commissioner's order and the standard of review applied in this case was correctness.