Recently, the Saskatchewan courts have issued a series of decisions providing guidance with respect to procedures and exemptions pursuant to The Local Authority Freedom of Information and Protection of Privacy Act [LAFOIPA].  The process for applications, reviews, and appeals is outlined in a separate post [https://www.mckercher.ca/blog/the-court-of-queens-bench-brings-clarity-to-the-local-freedom-of-information-and-protection-of-privacy-act] which also comments on a pair of decisions addressing those points. In University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34, the Saskatchewan Court of Appeal addressed the issue of solicitor-client privilege in the context of a review by the Privacy Commissioner.  In that case, the Privacy Commissioner was asserting the right to review records withheld by the local authority, to assess whether solicitor-client privilege was properly invoked.  The Privacy Commissioner was relying upon the following language found in section 43 of LAFOIPA: Notwithstanding any other Act or any privilege available at law, the commissioner may, in a review:

1. require to be produced and examine any record that is in the possession or under the control of a local authority;

  The Court of Appeal affirmed the finding of the Court of Queen’s Bench that the language was sufficient to abrogate solicitor client privilege, pursuant to the test set out in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, and affirmed in Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53. However, the Court of Appeal determined that the analysis does not end there. The Court noted that the Supreme Court of Canada, in Goodis v Ontario (Ministry of Correctional Services), 2006 SCC 31 and Canada (National Revenue) v Thompson, 2016 SCC 21 (among others), has confirmed that a decision to intrude upon solicitor-client privilege, and the means by which that will happen, must not interfere with solicitor-client privilege more than is absolutely necessary to achieve the ends of the enabling legislation. After reviewing the factual underpinnings of the case, the Court of Appeal concluded that the Privacy Commissioner should not have sought the complete release of the records over which the local authority had asserted solicitor-client privilege.  There was no evidence that the privilege had been improperly invoked, and the privilege should not be abrogated without substantive evidence that the privilege does not apply.  Rather, the Court of Appeal endorsed the practice of requesting an index that might include: the date of the record; its form (letter, memo, e-mail, etc.); the author of the record; the recipient of the record; and whether the record is an original or a copy (although the Court was quick to point out that there is no precise formula to providing an index). The Court of Appeal concluded that it is not open to the Privacy Commissioner to demand full disclosure as a matter of course, or simply because it was the Commissioner’s long-standing prior practice.  In doing so, the Court of Appeal acknowledged that it was imposing a “rather exacting burden on the Commissioner”, but felt that such a burden was necessary pursuant to the “absolute necessity” test safeguarding solicitor-client privilege. As noted in this decision, and those identified in the separate but related post [https://www.mckercher.ca/blog/the-court-of-queens-bench-brings-clarity-to-the-local-freedom-of-information-and-protection-of-privacy-act], even long-standing practices or approaches may be re-evaluated when put before the courts.  When responding to applications, reviews, or appeals under privacy legislation, it is often advisable to seek legal advice in addition to reviewing materials published by the Office of the Privacy Commissioner.

About the Author: Bob is an associate in the Saskatoon office where he focuses on education law, as well as civil and commercial litigation.  He regularly advises institutional and commercial clients on privacy matters, as well as protecting their reputation in the context of social media, and global communications.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest and largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.