DLA Piper (Canada) LLP wins Supreme Court decision asserting protection of solicitor-client privilege

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In a sweeping win for the University of Calgary, the Supreme Court of Canada has confirmed that the University was within its rights to refuse to disclose documents protected by solicitor-client privilege to the Information and Privacy Commissioner of Alberta.

The University was represented by DLA Piper (Canada) LLP's Robert Calvert, Q.C. (Calgary), Michael Ford, Q.C. (Calgary) and Monika Gehlen (Vancouver).  The Supreme Court’s decision, issued on November 25, 2016, is a complete vindication of the University’s position.

The case arose from an access to information request made of the University by a former employee.  As the employee had also sued the University for constructive dismissal, the University resisted production of its solicitor-client privileged documents on the same basis as in the parallel litigation.  The Alberta Information and Privacy Commissioner sought to override the University’s privilege claim, directing disclosure of the documents to herself in order to vet whether the University was entitled the privilege.

In a unanimous decision (with minority reasons by two judges) the Supreme Court held that the Alberta Freedom of Information and Protection of Privacy Act did not give the Commissioner the authority to compel the production of the University’s documents.  The Court reaffirmed its long-standing view of solicitor-client privilege as a rule of substance, fundamental to the proper functioning of our legal system.  Compelled disclosure to the Commissioner infringes the privilege, and can be justified only by clear, explicit, and unequivocal legislative language.  The Alberta Freedom of Information and Protection of Privacy Act does not meet that test.

The Court’s decision has implications for access-to-information requests across Canada, since all jurisdictions have similar legislation.  To what extent the decision applies in any particular jurisdiction or case depends, of course, on a careful review of the legislation and the facts of each case.