Included in Discovery: Atlantic Education & the Law – Issue 10

Koren Thomson & Josh Merrigan

Introduction

In the wake of the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53 (“University of Calgary)” an article appeared in the Fall 2018 issue of this publication addressing privileged records and access to information reviews. That article considered the potential implications of the decision on Atlantic Canadian educational institutions and concluded that the Supreme Court of Canada’s decision may provide a means by which to have the Privacy Commissioner resolve a claim of privilege without requiring production.

Since then, there have been differing reactions to the University of Calgary case across Atlantic Canada, each with the same implication.

Recent Developments

In Newfoundland and Labrador, the Supreme Court recently considered section 97(1)(d) of the Access to Information and Protection of Privacy Act, 2015 (“ATIPPA”) in Newfoundland and Labrador (Justice and Public  Safety) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2022 NLSC 59 (“Justice and Public Safety)”.

The legislative and judicial history of ATIPPA plays a key role in understanding this decision. In 2011, the Newfoundland and Labrador Court of Appeal found that “a privilege under the law of evidence” did include solicitor-client privilege. As a result, the Information and Privacy Commissioner was empowered to compel production of documents over which the privilege was claimed.¹ In response, the provincial government amended the legislation in 2012 to remove the Commissioner’s power of production over solicitor-client privileged records. Several years later, the Wells Committee was established by the provincial government to review ATIPPA and explicitly recommended that the Commissioner’s ability to review a claim of privilege should be restored. This recommendation was adopted by the Legislature, which reintroduced the language endorsed by the Court of Appeal, that production could be compelled notwithstanding “a privilege under the law of evidence”. The amendment was soon followed by the Supreme Court of Canada’s decision in University of Calgary, in which the Court held that a privilege under the law of evidence does not include solicitor-client privilege.

The NL Commissioner and public bodies have butted heads regarding the implication of the decision ever since.

Finally, in March 2022, the Supreme Court of Newfoundland and Labrador released a decision that grappled with the issue. In Justice and Public Safety, the court ultimately concluded that the current provisions of ATIPPA regarding production of privileged records were “substantially similar” to the Alberta provisions considered in University of Calgary. Therefore, since the Supreme Court of Canada had determined that solicitor-client privilege is more than a “law of evidence” – it is a law of substance – the Commissioner could not compel the production of records over which solicitor-client privilege is claimed.

The Court came to this conclusion despite the Commissioner arguing that University of Calgary had little precedential value on the basis of the legislative history in Newfoundland and Labrador, and two statutory provisions in ATIPPA that were not in the Alberta legislation.² However, the Court found that it “could not infer an intent to abrogate solicitor-client privilege from the nature of the statutory scheme or legislative history unless the language is already sufficiently clear.” ³ It also concluded that where there are two possible interpretations of a statute, one that requires an abrogation of solicitor-client privilege, and one that does not, the latter must be favoured.⁴ As a result, the Commissioner does not currently have the power to compel production of solicitor-client privileged records in Newfoundland and Labrador.

This appears to be the same for the remainder of Atlantic Canada.

Despite several amendments since University of Calgary, the legislation in New Brunswick remains explicit, with the Right to Information and Protection of Privacy Act at s 70(1) specifically precluding the Commissioner from compelling production of solicitor-client material from public bodies. Similarly, the Freedom of Information and Protection of  Privacy Act of Prince Edward Island has undergone several amendments since the decision came out. However, the PEI Commissioner’s powers of production continue to extend only to records despite “any privilege under the law of evidence” (at s 53(3)). This signals a clear intention by the Legislature of Prince Edward Island that the PEI Commissioner does not have the power to compel production of solicitor-client privileged records in that jurisdiction.

Unlike New Brunswick and Prince Edward Island, s 38(1) of Nova Scotia’s Freedom of  Information and Protection of  Privacy Act allows the Review Officer to compel production notwithstanding “any privilege that is available at law”. As such, the Nova Scotia legislation appears to grant broad powers of production to the Review Officer. However, it remains doubtful that the language is explicit enough to abrogate privilege. This is reinforced, albeit tangentially, by the Nova Scotia Supreme Court’s decision in Denike v Dalhousie University, 2018 NSSC 111 where it cited University of Calgary in support of the proposition that “access and privacy legislation does not create unfettered access to all documents.”⁵

Implications

Courts have repeatedly decided that solicitor-client privilege belongs to a client, and is a cornerstone of our legal system that has evolved into a special legal right with “quasi-constitutional” status.⁶ Accordingly, in the absence of clear and unequivocal statutory language ousting solicitor-client privilege, it cannot be assumed that a Commissioner can compel disclosure of documents over which solicitor-client privilege is claimed.

However, in an ever-changing democracy that increasingly values transparency, legislatures may be interested in making amendments that use clear and unequivocal language to abrogate solicitor-client privilege in favour of disclosure, particularly in situations where production is determined to be absolutely necessary, or to assess the claim for privilege. The provincial government of Newfoundland and Labrador has recommendations before it to do so, but at this time has not taken steps to implement those recommendations.

This is an avidly contested issue with significant legal and political implications. The Justice and Public Safety decision has already been appealed. The Newfoundland and Labrador Court of Appeal will again have to consider whether ATIPPA permits the Commissioner to compel production of records over which solicitor-client privilege is claimed. This time, the Court will have the benefit of the Supreme Court of Canada’s analysis in University of Calgary. Until that decision is rendered, or the legislation is amended, public bodies can continue to resist requests for production of records over which solicitor-client privilege is claimed in each of the four Atlantic Provinces.

This update is intended for general information only. If you have questions about the above, please contact a member of our Education Group.

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¹ Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General),  2011 NLCA 69 (CanLII).
² ATIPPA ss. 97(5)(a) which provides “The head of a public body may require the commissioner to examine the original record at a site determined by the head where (a) the head of the public body has a reasonable basis for concern about the security of a record that is subject to solicitor and client privilege or litigation privilege” and ss. 100 which provides “(2) The solicitor and client privilege or litigation privilege of the records shall not be affected by production to the commissioner.”
³ Justice and Public Safety at para 48.
⁴ Ibid, at para 49.
⁵ Denike v Dalhousie University at para 29.
⁶ University of Calgary at para 38.