Canadian Lawyer

46 A P R I L 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m Why? Because the commission- ers claim in the litigation that institutions essentially abuse solicitor-client privilege in order to hide documents, which suggests an inherent bias against those seeking to protect privileged documents. In Alberta Information and Privacy Commissioner v. Board of Governors of the University of Calgary, the federal informa- tion and privacy commissioners have joined forces with a group of six provincial and territorial commissions, while B.C., Ontario, and Newfoundland are seeking status on their own. At press time, the only missing provinces were New Brunswick and P.E.I. The commissioners, however, are meet- ing with stiff resistance, as law groups line up seeking intervenor status, in what is shaping up as a legal donnybrook. They include the Canadian Bar Association, the Federation of Law Societies of Canada, and the Criminal Lawyers Association. The case at the centre of the melee involves a 2008 wrongful dismissal suit alleging harassment at the University of Calgary involving its Qatar campus. The courts have long dealt with that case. How- ever, early in the litigation, the plaintiff sought access to documents through a free- dom of information request to the Alberta information and privacy commissioner. The University of Calgary responded by claiming privilege. It provided access to some documents, but refused access to oth- ers without much elaboration. The commissioner challenged the uni- versity's position before an Alberta cham- bers judge, arguing the school didn't provide enough context to determine if the docu- ments were covered by privilege and insisted the documents be turned over so the com- missioner could make a determination. The chambers judge sided with the commissioner and ordered the university to fork over the sensitive papers. The univer- sity appealed. The Alberta Court of Appeal ruled the statute should be strictly inter- preted and found in favour of the university. The court also took a swipe at the commis- sioner's so-called solicitor-client privilege adjudication protocol, which it foists upon parties that claim a privilege exemption. The appeal court noted it has "no statutory or regulatory force, but is merely the cre- ation of the commissioner's office." It's that ruling that will be before the SCC, and the commissioners are on an all- out offensive to expand their powers. Essentially, they argue that under their operating statutes, commissioners have the power to compel parties to produce docu- ments despite "any privilege of the law of evidence," or words similar in nature. How- ever, the statutes don't precisely refer to solicitor-client privilege. What they do is carve out an exception for producing docu- ments covered by solicitor-client privilege. But who should make that determination? The commissioners argue their various statutes effectively task them with the power to review privileged documents, otherwise the power to compel is meaningless. They say they need to review them to determine what should be disclosed. A number of them claim they have been doing so for years. For example, the federal Information Commissioner claims it has reviewed solici- tor-client documents as far back as 1984 and that today 20 per cent of refusals to comply stem from claims of privilege. The Newfoundland commissioner alleges at one point "more than half " the records it reviewed for solicitor-client priv- ilege failed to meet the exception. The reasons varied from the inexperience of access to information co-ordinators to lack of financial resources and a "misunder- standing" of what constitutes solicitor-client privilege. A 2012 review in B.C. found 20 per cent of them misapplied the exception. However, legal associations take the posi- tion that solicitor-client privilege can only be abrogated through explicit language in the legislation, which is lacking. Moreover, the Law Society of Alberta, among others, argues that commissioners are "adminis- trators," not independent, constitutionally appointed judges, so they lack the power to review. As well, the commissioners would sit as both prosecutor of inquiries and judge in determining if information should be turned over pertaining to an inquiry, gener- ally a no-no in law, and a potential conflict. As well, concerns were raised over pro- visions in the various acts that allow infor- mation to be shared with justice officials and the fact that commissioners do not have to be legally trained to get the job. Let's hope the SCC sees through this shallow grab for power. If it gives in to privacy commissioners, then the Competi- tion Bureau, the Canada Revenue Agency, FINTRAC, CSIS, and who knows who else will be lining up for their peek at papers that are best left unseen. Solicitor-client privilege is sacrosanct and its determination is best left to an inde- pendent judge, not power-hungry admin- istrators looking to expand their influence. The SCC should swiftly deep-six this case and governments should amend their legis- lation, making it clear that such fights are to be determined only by judges. Jim Middlemiss is a legal writer and princi- pal at WebNewsManagement.com. B A C K PA G E O P I N I O N @JimMiddlemiss By Jim Middlemiss olicitor-client privilege is once again under attack at the Supreme Court of Canada, but this time it's the Income Tax Act at the centre of the storm. Canada's information and privacy commissioners are wolf-packing and banding together in a case seeking leave to appeal that will be heard in April, claiming they have the powers under their operating statutes to compel document production, and determine which ones are covered by solicitor-client privilege. It's a far-reaching claim that would put privacy commissioners in conflict with their own investigations and one that should concern Canadian organizations. Privilege under privacy fi re S

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