Federal Court upholds sanctity of solicitor-client privilege

Lawyers should take note of a recent Federal Court of Appeal decision upholding the sanctity of solicitor-client privilege.

In Blood Tribe Department of Health v. Canada (Privacy Commissioner) 2006 FCA 334, a three-judge panel concluded unanimously that solicitor-client privilege is presumptively inviolate, and that the Personal Information Protection and Electronic Documents Act does not permit the Federal Privacy Commissioner to compel the production of documents where an assertion of solicitor-client privilege over the documents has been made.

The decision addresses those difficult situations where, pursuant to a statute, a requirement is made on a lawyer to produce documents that are subject to a client’s claim of privilege.

A lawyer’s professional obligations in such circumstances are set out in Chapter 5, Rule 14 of the Professional Conduct Handbook:

A lawyer who is required, under the Criminal Code, the Income Tax Act or any other federal or provincial legislation, to produce or surrender a document or provide information which is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document.

The facts of the case are relatively simple. The Blood Tribe Department of Health dismissed an employee. That employee applied to the Privacy Commissioner for access to her personal employment information. The Blood Tribe produced all records sought, except records over which a claim of solicitor-client privilege was made. The Commissioner, however, ordered production of the documents pursuant to s. 12(1)(a) and (c) of PIPEDA. The Federal Court (Trial Division) upheld the Commissioner’s order but the Court of Appeal overturned the decision.

The Commissioner argued that she needed access to the records in order to test the claims of privilege rather than accepting them at face value or having a judge decide the issue.

The Court of Appeal, however, held that solicitor-client privilege is presumptively inviolate and that express language would be needed in order to abrogate privilege.

It is also worth noting that in Canada (Attorney General) v. Canada (Information Commissioner) [2004] 4 F.C.R. 181, the Federal Court of Appeal considered a provision in the Access to Information Act purporting to permit the Federal Information Commissioner to examine any record “notwithstanding any privilege under the law.” Despite this express language, the Court held that the section:

… must be interpreted restrictively in order to allow access to privileged information only where absolutely necessary to the statutory power being exercised. (emphasis added)

In Blood Tribe, the court said the Commissioner’s ability to conduct an investigation is not fettered by a rule that protects privileged information. The court also noted that the Supreme Court of Canada, R. v. McClure [2001] SCR 14, had developed useful principles for reviewing solicitor-client privilege claims.

The Federal Court of Appeal also noted that in Goodis v. Ontario (Ministry of Correctional Services) 2006 SCC 31, the Supreme Court of Canada held that records subject to a claim of solicitor-client privilege may be ordered disclosed only where absolutely necessary — a test that falls just short of absolute prohibition.

Lawyers who receive a requirement pursuant to a statute to produce or surrender a document or provide information that is or may be privileged in circumstances where the client does not waive any claim of privilege, or where a client cannot be located and therefore no instructions can be obtained, are encouraged to call Law Society staff lawyers Michael Lucas, Policy and Legal Services Administrator, at 604 443-5777 or Kensi Gounden, Practice Standards Counsel, at 604 605-5321 for guidance with respect to the professional obligations that the lawyer must discharge.

Application for leave to appeal has been filed.