Commercial Litigation and Dispute Resolution Blog

On November 25, 2016, the Supreme Court of Canada (the "SCC") released two decisions that examine the protection of privileged communications before administrative bodies. The cases, which involve the Information and Privacy Commission of Alberta and Quebec's Chamber de l'assurance de dommages, consider the ability of legislation to infringe on the established classes of solicitor-client and litigation privilege. Despite different administrative bodies, context, and types of privilege, in both cases the SCC emphasized the fundamental importance of such forms of privilege for the operation of our legal system and held that neither could be set aside absent clear and explicit legislative intent.

In Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53, the Information and Privacy Commission of Alberta ordered production of records from the University of Calgary which the University claimed were covered by solicitor-client privilege. The request was made pursuant to an application made under the Freedom of Information and Protection of Privacy Act (“FOIPP") by a former employee of the University during the course of litigation with the University. The Commission sought to verify whether solicitor-client privilege was properly asserted by the University against the employee and issued a Notice to Produce Records to the University under section 56(3) of the Act. That section provides that a public body must produce records requested by the Commissioner "[d]espite…any privilege of the law of evidence." The University refused to disclose the documents and applied for judicial review. Even though the litigation between the University and the employee concluded during the course of the proceedings, the case proceeded on a point of principle.

The specific issue considered by the SCC was whether the University could be compelled to disclose documents protected by solicitor-client privilege to the Commissioner or her delegate for review in order to determine the validity of the University's claim of privilege.  Justice Côté, writing for the majority of seven sitting justices, held that section 56(3) of FOIPP does not require production of a document to the Commissioner when solicitor-client privilege is claimed.  That section failed to meet the "clear, explicit and unequivocal" language required to set aside solicitor-client privilege.

The majority reviewed and applied the well-established jurisprudence to the effect that solicitor-client privilege is "no longer merely a privilege of the law of evidence, having evolved into a substantive protection" and, according to some, having acquired "constitutional dimensions" and that it was to "remain as close to absolute as possible and should not be interfered with unless absolutely necessary."  In analyzing the specific statutory provision and legislation in issue, the majority also emphasized that it was utilizing the "modern approach" to statutory interpretation and was thus "in no way. . .returning to the plain meaning rule" even though the Alberta Court of Appeal had concluded that an earlier SCC decision ousted the modern approach in favour of one of strict construction where solicitor-client privilege was in issue.

In Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52, the SCC, with nine sitting justices, affirmed the findings of the courts below and concluded that litigation privilege cannot be rescinded absent an express statutory provision. In that case, the Quebec Chamber de l'assurance de dommages (the "Chamber"), an administrative body designed to ensure protection of the public in matters relating to damage insurance and claims adjustment, requested the disclosure of documents from an insurer involved in an investigation. The insurer refused on the basis that certain documents were protected by litigation privilege. The Chamber claimed that litigation privilege was lifted by operation of the statutory obligation for a party related to an investigation to produce "any… document."

Justice Gascon, writing for the unanimous court, held that a party cannot be denied the right to claim litigation privilege "without clear and explicit legislative language to that effect." Legislation with a blanket provision requiring production of "any… document" was not deemed sufficiently explicit to abrogate litigation privilege. The SCC rejected arguments that litigation privilege be limited due to an overriding public interest and that it no longer reflects the more co-operative nature of the courts.

With thanks to articling student James Scott for his assistance in writing this blog post.