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Privacy Commissioner Not Entitled to Privileged Documents
July 31, 2008

The Supreme Court of Canada recently ruled that the Personal Information Protection and Electronic Documents Act (“PIPEDA“) does not entitle the Privacy Commissioner of Canada to access to documents protected by solicitor-client privilege.

The case arose when a former health department employee requested access to her personnel file and the employer denied the request without giving reasons. The employee filed a complaint with the Privacy Commissioner seeking access to the information and the Commissioner requested the file from the employer. The employer provided some of the documents but withheld a “bundle of letters” with respect to which it claimed solicitor-client privilege. The Privacy Commissioner relied on s. 12 of PIPEDA, which provides that the Commissioner has the power to compel production of records in the same manner as a superior court, to order the records from the employer. The employer applied for judicial review, challenging the legality of the order.

On appeal from the lower courts, the Supreme Court of Canada held that the wording of s. 12 of PIPEDA, however broad, does not confer a right of access to solicitor-client documents, even for the limited purpose of determining whether privilege is properly claimed. The Court found that the Privacy Commissioner had not made a case that routine access to solicitor-client records is absolutely necessary” to achieve the ends sought by PIPEDA. The Court held there were less intrusive remedies available to the Commissioner such as referring the question to a court.

This ruling by the Supreme Court of Canada is a significant confirmation of the sanctity of solicitor-client communications and continues the important common law tradition of solicitor-client privilege.