Privacy Commissioner Cannot Review Privileged Documents, Rules the Supreme Court of Canada

The Supreme Court of Canada (Court) has denied an attempt by the federal Privacy Commissioner (Commissioner) to review documents for which solicitor-client privilege has been claimed. In Canada (Privacy Commissioner) v Blood Tribe Department of Health et al, 2008 SCC 44, the Court weighed the Commissioner's rights under the Personal Information Protection and Electronic Documents Act (PIPEDA) against the firmly established rights of solicitor-client privilege. Section 12 of PIPEDA grants the Commissioner the power to compel the production of documents relevant to a complaint "in the same manner and to the same extent as a superior court of record" and to "receive and accept any evidence and other information… whether or not it is or would be admissible in a court of law". The Commissioner argued that this provision gave her the authority to review documents to assess whether they are properly subject to a claim of solicitor-client privilege. In a unanimous decision written by Justice Ian Binnie, a seven-Justice panel of the Court held that the statute does not explicitly authorize the Commissioner to review privileged documents and that in order for solicitor–client privilege to function effectively, it must remain as close to an absolute privilege as possible. The language of a statute that waives the privilege must be clear and explicit, said the Court, in order to protect the privilege against erosion. The Court made two ancillary procedural points that buttressed its holding. First, it noted that the Commissioner is an investigator, not an adjudicator, and that in carrying out her duties, she could become adverse in interest to the party holding the contested documents. Secondly, PIPEDA contains a process whereby the Commissioner may refer the issue of solicitor-client privilege to a court. For the full reasons for judgment, see: http://scc.lexum.umontreal.ca/en/2008/2008scc44/2008scc44.html Summary by: James Kosa