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.

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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.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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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, October 19, 2006

Commissioner cannot compel privileged documents: FCA 

The Federal Court of Appeal yesterday released its decision in Blood Tribe Department of Health v. Canada (Privacy Commissioner). This is the important decision in which the Federal Court had held that the Privacy Commissioner had jurisdiction to review documents that are claimed to be privileged to determine if the privilege was properly claimed in a request for access (FCT case).

The Court of Appeal held (and forgive the bad OCR of a faxed copy of the decision -- a cleaned up version will appear shortly):

(e) How to Deal with a Claim of Solicitor-Client Privilege under PIPEDA

[31] Section 15 of PIPEDA permits the Commissioner to apply to the Federal Court in relation to any matter referred to in section 14 which in turn encompasses solicitor-client privilege pursuant to subsection 9(3) of that Act (supra, at paragraph 4).

[32] The Intervener, the Law Society of Alberta, directed the panel to the Supreme Court of Canada of R v, McClure, 2001 SCC 14 [McClure]. That case outlined useful principles to be applied regarding a review of solicitor-client privilege by civil and criminal courts. McClure faced sexual charges from twelve former students, including one 'J.C.' who had also commenced a civil action. In the criminal action, McClure sought production of JC's civil litigation file in order to determine the nature of his allegations and to test his motivation in fabricating or exaggerating incidents of abuse. Major J. outlhed a three stage procedural test to protect the solicitor-client privilege. In the first two stages, the party seeking privileged material must establish that there i s no other compellable source for the privileged information as well as an evidentiary basis upon which to conclude that the information would be legally useful. In the third stage, the judge must then examine the documents and will not release them unless satisfied that they would likely give rise to an issue of relevance pertinent to the ,ultimate disposition of the case.

[33] In my analysis, the Commissioner's ability to conduct her investigation is not fettered by a rule that protects privileged communication. In circumstances where a broad claim of solicitor client privilege is used as a shield to thwart on investigation, judges of the Federal Court are equal to the task of developing procedures that adequately minimize the potential invasion of the privilege (see also Goodis v. Ontario (Ministry of Correctional Services}, 2006 SCC 3 1 at paragraph 2 1).

V. Conclusion

[34] In summay, the Judge erred in adopting a purposive and liberal interpretation of paragraphs 12(l)(a) and (c) of PIPEDA and in adopting AIA principles in a PIPEDA review. The appeal should be allowed, the order of the Judge dated March 8, 2005 should be set aside and the Commissioner's order for production of rccords dated October 22, 2003 should be vacated. Costs to the appellant in this appeal. No costs were sought by the intervener, the Law Society of Alberta.

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