The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Thursday, April 28, 2005
The Federal Court of Canada has been given the opportunity to consider the powers of the Privacy Commissioner under PIPEDA to compel the production of information for which solicitor-client privilege is claimed. In Blood Tribe (Dept. of Health) v. Canada (Privacy Commissioner), Justice Mosley concluded that the Commissioner does have the power to compel information for the purposes of determining whether it is privileged:
" Having regard to the overall scheme of the statute and the Commissioner's responsibility to conduct an effective investigation, the principles enunciated by the Supreme Court of Canada in Lavallee do not, in my view, require that section 12 of the PIPED Act be given the restrictive interpretation called for by the applicant. The production order issued by the Commissioner will not limit or deny any solicitor-client privilege that the applicant may enjoy in the questioned documents. I am satisfied that in order to complete her investigation it is necessary that the claim of privilege be assessed by the Commissioner to determine whether it properly applies to the questioned documents or not. That will not prevent the applicant from continuing to assert the claim in any other proceedings that may arise in relation to the complaint.
 Accordingly, the Commissioner correctly exercised her authority to issue the production order and this application will be dismissed. As the question of interpretation of the scope of the PIPED Act in relation to solicitor-client privilege appears to have arisen for the first time in these proceedings, I will exercise my discretion to make no order of costs in favour of the successful party."
This was a judicial review of the Commissioner's order and the standard of review applied in this case was correctness.
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