The Supreme Court of Canada (SCC) has upheld a Court of Appeal of Alberta decision (2016 SCC 53) that found that the Freedom of Information and Protection of Privacy Act does not empower the Information and Privacy Commissioner of Alberta to compel production of records in order to determine whether solicitor-client privilege has been properly claimed over records sought in an access to information request.
“We will have to work with various stakeholders to fully understand the implications of this decision. I will be writing to the Government of Alberta to provide options and a recommendation for how to proceed on this issue,” said Information and Privacy Commissioner Jill Clayton.
A number of cases before the courts and files before the Office of the Information and Privacy Commissioner involve records subject to claims of solicitor-client privilege. It is too early to say precisely how those matters will be dealt with until the implications of the SCC’s decision are fully understood. The office will continue to work with the parties involved in those cases to seek a resolution.
This case stemmed from a wrongful dismissal suit filed by a former employee against the University of Calgary. The former employee had requested certain records but the university claimed solicitor-client privilege over some of the records. The former employee asked the OIPC to review the university’s response to the access request in March 2009. The Adjudicator conducting an inquiry sent a notice to produce records to the university.
The university applied for judicial review of the notice to produce records. In November 2013, the Court of Queen’s Bench of Alberta found the Commissioner has the power to compel the production of records for which solicitor-client privilege has been claimed (docket #1001-16269).
On appeal by the university to the Court of Appeal of Alberta, the lower court’s decision was overturned in April 2015 (docket #1301-0368-AC).
The Information and Privacy Commissioner sought leave to appeal to the Supreme Court of Canada and was granted leave in October 2015.
The case was heard by the Supreme Court of Canada on April 1, 2016.