Name of case: Blood Tribe Department of Health v. Canada (Privacy Commissioner)
 
Court appealed from and date of judgment: Judgment of the Federal Court of Appeal dated October 18, 2006

Facts: Dismissed from her job with the Blood Tribe Department of Health in Alberta, Annette J. Soup filed a complaint with the Privacy Commissioner of Canada under the PIPED Act seeking access to her personal employment information, which the Blood Tribe had refused to provide without giving reasons. Soup also alleged that personal information had been collected by a Blood Tribe representative without her consent and had been presented to a Blood Tribe board meeting.

In response to her complaint, an Assistant Privacy Commissioner contacted the Blood Tribe and requested, in very broad terms, all records and documents pertaining to Soup's employment. All records were provided except for correspondence between the Tribe and its solicitors, in regard to which a claim of solicitor-client privilege was advanced in the form of an unchallenged affidavit by an officer of the Blood Tribe. This claim of privilege was never waived.

The Privacy Commissioner ordered production of these purportedly privileged documents pursuant to her powers under sections 12(1)(a) and (c) of the PIPED Act. Section 12(1) states: "The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may, (a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record; ... (c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law."

However, s.9(3) of the PIPED Act provides that "an organization is not required to give access to personal information ... if (a) the information is protected by solicitor-client privilege."

Faced with the Blood Tribe's refusal to provide her with the purportedly privileged documents for review, the Privacy Commissioner applied to the Federal Court of Canada for an order compelling production. 

Case History: In a March 8, 2005 order, a judge of the Federal Court determined that sections 12(1)(a) and (c) of the PIPED Act did empower the Commissioner to compel production of documents over which solicitor-client privilege was claimed in order to effectively perform her statutory investigative role. The basis of the judge's order was his finding that the Commissioner had extraordinary procedural and substantive powers similar to that of a superior court of record and was entitled to review purportedly privileged documents. He held that, if Parliament had intended to prevent the Commissioner from verifying such claims, it could have specifically excluded this power as it had done under several other Acts.

In an October 18, 2006 decision, the Federal Court of Appeal allowed the Blood Tribe's appeal of the order. Writing the unanimous decision of a three-member panel of the Court, Justice Brian Malone relied on the decision of the Supreme Court of Canada in Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, in which, he said, the Court held that "any legislation which would limit or deny solicitor-client privilege must be interpreted restrictively" and that "the privilege cannot be abrogated by inference." As Justice Malone noted, the Supreme Court made it clear that broad language and inclusive phrases relating to the production of records should not be read to include privileged communications."

Justice Malone found that "[i]n the present case, [the PIPED Act] has no express language to abrogate privilege." He considered that "[t]he Commissioner submits that she must be in a position to test claims of solicitor-client privilege, as opposed to accepting such claims at face value or bringing an application to court to have a judge decide the issue. However, she has presented only a general rationale that her investigation would be fettered. The affidavit presented by the Blood Tribe has not been challenged on cross-examination. On the present record, there have been no facts alleged that demonstrate why the Privileged Documents are in any way necessary to the Commissioner's investigation."

On behalf of the Federal Court of Appeal, Justice Malone allowed the Blood Tribe's appeal, and set aside both the lower court judge's order and the Privacy Commissioner's order for the production of the records.  The Privacy Commissioner applied for leave to appeal this ruling.

Issue(s): Whether the Privacy Commissioner of Canada can compel the production of documents over which a claim of solicitor-client privilege is asserted in the context of an investigation under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.

Status: Heard February 21, 2008. Judgment Reserved

Lancaster Reference: For analysis of the Federal Court of Appeal’s decision, see Lancaster’s Federal Labour & Employment Law Reporter, January/February, 2006.