In Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada rejected an attempt by the Privacy Commissioner of Alberta to view documents over which the University was claiming solicitor–client privilege. Responding to a freedom of information request by a former employee, the University of Calgary refused to produce certain records on the grounds that they were privileged. The Alberta Privacy Commissioner invoked s. 56(3) of the Alberta Freedom of Information and Protection of Privacy Act (FOIPP) to demand production of the records despite “any privilege of the law of evidence” in order to assess the validity of the privilege claim.
The Supreme Court was asked to rule on whether the language of s. 56(3) was sufficient to abrogate solicitor-client privilege. In a news release when leave was granted, the Alberta Privacy Commissioner cast the issue as one of access and transparency of public institutions, and argued that their ability to test a claim of privilege was fundamental to effective oversight:
This case has significant implications for upholding the access rights of Albertans. Specifically, it impacts the Commissioner’s ability to provide effective oversight when reviewing decisions made by government ministries, post-secondary institutions, school boards and municipalities, among others, in response to access to information requests.
The SCC reaffirmed that solicitor-client privilege is fundamental to the proper functioning of the Canadian legal system, and concluded that for any legislation to abrogate that right would require clear and explicit language. They held that “solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection."
This case has been followed closely by Privacy Commissioners, Law Societies and legal associations (there were 17 such interveners). The outcome is an affirmation of the importance of the protection of solicitor–client privilege and sends a strong message to legislators about what it will take to set aside that protection. It will be interesting to see whether any legislation is amended in response, or whether governments will quietly rejoice in their strengthened privilege rights when facing freedom of information requests.
Earlier this week, the Federal Court of Canada issued its ruling that Canada’s domestic spy agency, CSIS, is only permitted to retain information “to the extent that it is strictly necessary”. The Court criticized CSIS for illegally retaining information and data that should have been destroyed because it was unrelated to threats to the security of Canada.
Typically organizations fear destroying data, adopting a ‘keep everything’ approach in case the information might be useful at some point in the future. The Court stated, however, that the future use argument does not apply to “[n]on-target and non-threat information collected due to a coincidence of time and events”.
This decision is just one more example of why organizations should not retain information longer than necessary. Courts endorse defensible destruction, and good information governance includes defensible disposition policies.
The New York County Supreme Court recently held in Perenboom v. Marvel that use of a corporate e-mail server by an employee may constitute a waiver of privilege. In that case, the corporate user policies prohibited personal and objectionable use of its e-mail server; and the Court held that acceptance of these policies constituted waiver. The Court considered various types of privilege claims and found that only spousal privilege may apply because the employee’s spouse was not aware of the corporate policies.
Contrast the Perenboom decision to the recent finding by the Ontario Superior Court of Justice in Narusis v. Bullion Management Group. In a similar (albeit not identical) situation, the Court clearly distinguished between an employee’s general right to privacy and the protection of privileged communications sent via an employer’s e-mail server. The Ontario Court highlighted that privilege is distinct from privacy and thus afforded a different protection in accordance with the principles of the administration of justice.
While the Perenboom decision may survive an appeal in the US, we don’t think this line of reasoning would hold water in Canada. In fact, the Court in Narusis underscored the difference between the law of privilege in Canada and the US; the Court stated that in the US “privilege [is] a rule of evidence” and “is not without conditions”, whereas in Canada it is a “fundamental principle that our law recognizes”.
Both cases demonstrate that as e-mail and other corporate communication tools become more pervasive, it is important to understand the complexities associated with their use, and craft policies accordingly. Even with such policies in place, while employees may relinquish some, if not all of their privacy rights by accepting them, privilege will continue to be “as close to absolute as possible” – at least in Canada.
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