Supreme Court rules on Privacy Commissioner's power to review privileged documents

The Supreme Court of Canada has just handed down its decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, which was a question of whether the Privacy Commissioner could review documents to determine whether claims of privilege have been properly applied. The unanimous Court, on appeal from the Federal Court of Appeal, determined that she cannot.

From the headnote:

Privacy — Investigations of complaints — Powers of Privacy Commissioner — Production of documents — Solicitor‑client privilege — Dismissed employee filing complaint with Commissioner and seeking access to her personal employment information — Employer claiming solicitor‑client privilege over some documents — Whether Commissioner can compel production of privileged documents — Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 12.

Following her dismissal, an employee asked to have access to her personal employment information because she suspected that the employer had improperly collected inaccurate information and used it to discredit her before its board. The employer denied the request, and the employee filed a complaint with the Privacy Commissioner seeking access to her personal file. The Commissioner requested the records from the employer in broad terms. All records were provided except for those over which the employer claimed solicitor‑client privilege. The Commissioner then ordered production of the privileged documents pursuant to s. 12 of the Personal Information Protection and Electronic Documents Act (“PIPEDA”), which confers the powers to compel the production of any records “in the same manner and to the same extent as a superior court of record” and to “receive and accept any evidence and other information . . . whether or not it is or would be admissible in a court of law”. The employer applied for judicial review of the Commissioner’s decision. The reviewing judge determined the Commissioner was empowered to compel production of documents over which solicitor‑client privilege was claimed in order to effectively complete her statutory investigative role. The Federal Court of Appeal set aside the decision of the reviewing judge and vacated the Commissioner’s order for production of records.

Held: The appeal should be dismissed.

Solicitor‑client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice. However, experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible”. Without that assurance, access to justice and the quality of justice in this country would be severely compromised. It is in the public interest that the free flow of legal advice be encouraged. [9]

When the appropriate principles of statutory interpretation are applied to the general language of PIPEDA, the right of the individual or organization that is the target of the complaint to keep solicitor‑client confidences confidential must prevail. The Commissioner is an officer of Parliament vested with administrative functions of great importance, but she does not, for the purpose of reviewing solicitor‑client confidences, occupy the same position of independence and authority as a court. It is well established that general words of a statutory grant of authority to an office holder, including words as broad as those contained in s. 12 of PIPEDA, do not confer a right to access solicitor‑client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved to the courts. Express words are necessary to permit a statutory official to “pierce” the privilege. Such clear and explicit language does not appear in PIPEDA. [1-2]

An adjudication of a claim of privilege by the Commissioner, who is an administrative investigator not an adjudicator, would be an infringement of the privilege. Client confidence is the underlying basis for the solicitor‑client 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. The objection is all the more serious where, as here, there is a possibility of the privileged information being made public or used against the person entitled to the privilege. Furthermore, in pursuit of its mandate, the administrative officer may become adverse in interest to the party whose documents it wants to access. Not only may it take the resisting party to court but it may decide to share compelled information with prosecutorial authorities without court order or the consent of the party from whom the information was compelled. [20‑21] [23]

Here, the only reason the 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 Commissioner is therefore demanding routine access to such documents in any case she investigates where solicitor‑client privilege is invoked. In the Commissioner’s view, piercing the privilege would become the norm rather than the exception in the course of her everyday work. Even courts will decline to review solicitor‑client documents to adjudicate the existence of privilege unless evidence or argument establishes the necessity of doing so to fairly decide the issue. [17]

The Commissioner has not made out a case that routine access to solicitor client confidences is necessary to achieve the ends sought by PIPEDA. There are other less intrusive remedies. Firstly, she may, at any point in her investigation, refer a question of solicitor‑client privilege to the Federal Court under s. 18.3(1) of the Federal Courts Act. Secondly, within the framework of PIPEDA itself, the Commissioner has the right to report an impasse over privilege in her s. 13 report and, with the agreement of the complainant, bring an application to the Federal Court for relief under s. 15. The court is empowered, if it thinks it necessary, to review the contested material and determine whether the solicitor‑client privilege has been properly claimed. This procedure permits verification while preserving the privilege as much as possible. [31] [33‑34]

Some past coverage of this case on this blog: Canadian Privacy Law Blog: Decision: Blood Tribe (Dept. of Health) v. Canada (Privacy Commissioner), Canadian Privacy Law Blog: Commissioner cannot compel privileged documents: FCA.