Privacy vs. solicitor-client privilege

Supreme Court of Canada overrules privacy commissioner’s order for employer to hand over legal correspondence pertaining to employee
By Renee Smith
|Canadian Employment Law Today|Last Updated: 01/08/2009

The Supreme Court of Canada has upheld the principle of solicitor-client privilege over an employee’s right to see her personal records held by her employer, stating that not even the Office of the Privacy Commissioner of Canada has the right to examine such records to determine the extent to which such privilege exists.

Annette Soup was dismissed from her job with the Blood Tribe Department of Health on a reserve south of Calgary. The tribe sought legal advice, which was included in Soup’s employee file. Following her dismissal, Soup, suspecting her file contained inaccurate information that her employer had used to discredit her, requested the file. The tribe refused to hand it over and Soup filed a complaint with Canada’s privacy commissioner seeking access to her personal employment information. The privacy commissioner requested Soup’s employment records from the tribe, which handed over some of the contents, but withheld letters from its lawyer. The documents were protected by solicitor-client privilege, the tribe said, and it could not be compelled to produce the letters for the commissioner to examine.

The privacy commissioner ordered the employer produce the documents it was withholding under the Personal Information Protection and Electronic Documents Act (PIPEDA), which states that in the process of conducting an investigation in respect of a complaint, the commissioner may compel a party to “produce any records and things that the commissioner considers necessary to investigate the complaint and to the same extent as a superior court of record.” Also, the commissioner can “receive and accept any evidence and other information that the commissioner sees fit, whether or not it is or would be admissible in a court of law.”

The commissioner’s reach

The Federal Court decided in favour of the privacy commissioner, saying Parliament did not intend the privacy commissioner’s investigations to be fettered by questions of privilege. The court drew an analogy to a similar provision in the Privacy Act where the commissioner can review evidence where an exemption to privilege is claimed due to a threat to national security. The court also interpreted the legislation as giving the commissioner extraordinary powers to act like a court.

The Federal Court of Appeal decided any overruling of solicitor-client privilege required “clear and express language” and facts must be offered to justify the breach of the principle. The appeal court interpreted the provisions to mean the commissioner had the right to issue subpoenas and orders on matters within its jurisdiction but did not have the same jurisdiction of a superior court.

The power of privilege

Based on the <i>Freedom of Information and Protection of Privacy Act</i> individuals can generally get access to their personal information, provided the request doesn’t fall within the list of six exceptions to honouring access — including solicitor-client privilege. Solicitor-client privilege is fundamental to the legal process, so only in extreme cases, such as those involving harm, would a court sanction any breach of the principle.

The Privacy Commissioner of Canada argued to the Supreme Court of Canada she needed to see the documents in order to determine the privilege actually existed — otherwise an employer could withhold any information by merely claiming it was privileged, thereby limiting the employee’s rights to find out what the employer knows or believes about him. Also, the commissioner pointed out her office did not intend to disclose what the documents contained to the employee.

The commissioner and the Supreme Court

The Supreme Court of Canada ruled the privacy commissioner could not access the letters between the employer and its lawyer without arguments as to the absolute necessity of revealing them. To rule in favour of the commissioner would make such a demand for privileged documents the norm, which would eviscerate the perception of confidentiality between the employer and its counsel. Also, the court said the decision as to whether the necessity argument is valid should be up to a court of law as the appropriate arbiter of individual rights. Clients would not feel comfortable being honest and candid with their lawyer, and thus the lawyer could not offer the best advice to the client and pursuit of justice would be compromised, the court said. Lastly, the court noted the privacy commissioner could become an adversary against the employer should she decide an offense has occurred. Where the commissioner perceives an offence has occurred, PIPEDA permits the commissioner to disclose the information to the Office of the Attorney General. This puts the employer at risk.

The Supreme Court denied the commissioner’s appeal. Based on this decision the correspondence between an employer and its legal counsel pertaining to an employee can be withheld from that employee who requests access to her personal information. See Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 CarswellNat 2244 (S.C.C.).

Renee Smith is a writer and researcher for ConsultCarswell. For more information, visit www.consultcarswell.com.