Supreme Court of Canada to Consider Privacy Commissioner's Powers of Investigation and Enforcement

News Release

OTTAWA, February 21, 2008 — Today, the Supreme Court
of Canada will hear a case that will ultimately determine how
the Privacy Commissioner’s investigative authority is affected
by claims of solicitor-client privilege.
An employee of the Blood
Tribe Department of Health, after being dismissed, filed a complaint
with the Privacy Commissioner after her request for access to
her personal employment file was denied. The Commissioner requested
a copy of the complainant’s file to investigate the
matter. Correspondence in the file between the Blood Tribe Department
of Health and its solicitors was withheld from the Commissioner
on the basis that it was subject to solicitor-client privilege.
To verify the existence of the privilege, which could justify a denial
of access, the Privacy Commissioner ordered production of the withheld
documents pursuant to paragraphs 12(1)(a) and 12(1)(c) of the Personal
Information Protection and Electronic Documents Act (PIPEDA).
The Blood Tribe Department of Health challenged the legality of the
Commissioner’s order and the case was heard by the Federal Court
in 2006.
The Federal Court ruled that, in order to effectively conduct an investigation,
the Privacy Commissioner had the authority to compel production of documents
over which solicitor-client privilege was claimed.
The Federal Court of Appeal later overturned that decision, finding
the language in PIPEDA that grants the Commissioner the power
to order the production of records was not clear enough to grant the
Commissioner specific power to order the production of solicitor-client
privileged documents.
The Federal Court of Appeal’s decision significantly weakened
the Commissioner’s investigative power by preventing her from
reviewing the validity of a claim of solicitor-client privilege.
This decision leaves a gap in the Commissioner’s ability to discharge
her legislative mandate and will potentially allow a broad claim of
solicitor-client privilege to inhibit an investigation by the Privacy
Commissioner.
If this decision is upheld by the Supreme Court, there would be
no possibility of independent verification of the appropriateness of the
solicitor-client claim other than by a formal application to the Federal
Court.
— 30 —
For more information, contact:
Colin McKay,
Office of the Privacy Commissioner of Canada
Telephone: (613) 995-0103
Email: cmckay@privcom.gc.ca

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Supreme Court of Canada to Consider Privacy Commissioner's Powers of Investigation and Enforcement

News Release

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