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Supreme Court upholds solicitor-client privilege

|Written By Tim Naumetz

OTTAWA - A landmark Supreme Court of Canada ruling has taken adjudication over claims of solicitor-client privilege a major step closer to the point where only courts will have jurisdiction to decide whether the claims are valid, says one of 17 lawyers who acted for a host of interveners in the case.

The decision in Privacy Commissioner of Canada v. Blood Tribe Department of Health marked the first time the court substantively addressed the “gatekeeper issue” by ruling constitutionally independent courts are the “presumptive guardians” of privilege, says Bruce MacIntosh, who argued for the Federation of Law Societies of Canada.

“The court has made loud and clear that privilege as a substantive legal right is unique,” MacIntosh adds, in an interview with Law Times. “It has now said that privilege as a substantive legal right is unique and is not to be balanced against other competing societal or statutory objectives.”

The decision was written by Justice Ian Binnie, with concurrence from all six other justices who heard the appeal from a Federal Court of Appeal decision that set aside a Federal Court trial decision over a privilege claim in Alberta.

In 2002, Annette Soup was dismissed from her employment with the Blood Tribe Department of Health in Standoff, Alta., and sought access to her personnel file because she suspected the employer improperly collected inaccurate information about her and used it to discredit her before the department’s board of directors.

The department initially denied Soup’s request for access to the information it held about her, and subsequently partially complied at the request of the federal privacy commissioner after Soup lodged a complaint with the commissioner.

Other information the department withheld - a “bundle of letters” from its solicitors - became the basis for four years of court action that ended with the Supreme Court decision rendered on July 17.

The first Federal Court ruling, by Justice Richard Mosley, backed the privacy commissioner’s bid to view the privileged documents, noting the Personal Information Protection and Electronic Documents Act gives the commissioner the power to exercise wide investigatory powers “in the same manner and to the same extent as a superior court of record.”

Mosley, a former senior counsel and assistant deputy minister with the federal Justice Department, wrote that if “Parliament intended to prevent the commissioner from verifying claims of privilege, it could have specifically excluded this power as it has done under several other acts.”

The Federal Court of Appeal tribunal ruled, however, the commissioner’s request for the employer’s records was too broad to allow a statutory abrogation of solicitor-client privilege.

As well, the appeal panel agreed the act’s reference to equivalence with a superior court applied only to the commissioner’s power to issue subpoenas and other orders that have the force of law for the purposes of the commissioner’s investigations.

Binnie agreed the commissioner is vested with “administrative functions of great importance” as an officer of Parliament but “she does not, for the purpose of reviewing solicitor-client confidences, occupy the same position of independence and authority as a court.

“Express words are necessary to permit a regulator or other statutory official to ‘pierce’ the privilege,” he wrote, arguing the uniquely crucial role privilege plays in the integrity of the justice system and later adding the commissioner does not even have the authority to order an employer or organization to provide information to complainants, who would have to turn to the courts in such a situation. Binnie also pointed out the commissioner could turn to the Federal Court for a judicial review of privilege claims.

MacIntosh, with Mac Mac & Mac (MacIntosh MacDonnell & MacDonald) law offices in New Glasgow, N.S., says the decision was particularly important because of a growing tendency by regulatory boards, agencies, and commissions across Canada to believe they have jurisdiction to compel disclosure of privileged documents and other information.

“I believe it’s an area that we as members of the bar have perhaps not been as vigilant as we should have been on this issue,” he tells Law Times.

“In our view the next step is that only the traditional constitutionally independent courts should be the guardians and adjudicators of privilege,” he says. “There has to be reasonable grounds for peeking underneath the cloak.”

Mahmud Jamal, who argued an intervention for the Canadian Bar Association, agrees.

He tells Law Times if Parliament amends PIPEDA to give the privacy commissioner explicit powers to access privileged information held by private-sector organizations - powers the commissioner already has for investigations of federal government actions, under the Privacy Act - it will likely lead to another battle in the Supreme Court.

Jamal, a partner at Osler Hoskin & Harcourt LLP’s Toronto office, says the 2002 Lavallee v. Canada decision firmly established solicitor-client privilege as a constitutional right under the Charter.

“In principle, yes, a clear statutory right would deal with the court’s concerns in this case, but it would in itself raise a new round of issues, which is the constitutionality of such a measure, which wasn’t addressed at all in this case,” he tells Law Times.

Patricia Kosseim, the commissioner’s in-house counsel for the Blood Tribe case, says the commission had already raised the possibility of amending the act during a Commons review of privacy legislation to the Supreme Court ruling.

“It is under consideration,” she tells Law Times, adding the privacy commissioner, currently Jennifer Stoddart, has “many other avenues” to test the veracity and credibility of privilege claims.

The avenues include the production of affidavits, and cross-examination on the affidavits, as well as turning to the Federal Court for reviews.

Interveners included privacy and information commissioners from British Columbia, Ontario, Alberta, and the New Brunswick ombudsman’s office.

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