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Supreme Court of Canada to consider Privacy Commissioner’s powers of investigation and enforcement

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.

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For more information, contact:

Colin McKay, Office of the Privacy Commissioner of Canada
Telephone: (613) 995-0103
Email: cmckay@priv.gc.ca

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