CALGARY, July 24 /CNW/ - The Privacy Commissioner's order for records
between a lawyer and a client was dismissed Thursday, July 18 when the Supreme
Court of Canada upheld a decision made earlier by the Federal Court of Appeal.
The FCA decision in the case, Blood Tribe Department of Health v. Privacy
Commissioner of Canada and Annette J. Soup, to vacate the Commissioner's order
for production of records, stands.
In this decision, the SCC upheld the right of clients and lawyers to
solicitor-client privilege which means that clients are assured that
information shared to their lawyers is, and will always remain, confidential.
The SCC noted in its decision that: "solicitor-client privilege is
fundamental to the proper functioning of the legal system. Without that
assurance, access to justice and the quality of justice in this country would
be severely compromised. It is in the public interest that the free flow of
legal advice be encouraged."
"Client confidence is the underlying basis for the solicitor-client
privilege, and infringement must be assessed through the eyes of the client,"
the SCC report stated.
The SCC noted that: "The Commissioner is an officer of Parliament vested
with administrative functions of great importance, but she does not, for the
purpose of reviewing solicitor-client confidences, occupy the same position of
independence and authority as a court."
Chronology of Events:
The case began in spring 2002 when Ms. Soup's employment was terminated
by the Blood Tribe (a southern Alberta First Nations). At the time of her
dismissal, the Blood Tribe sought and obtained written legal advice regarding
Ms. Soup's employment.
Following her dismissal, Ms. Soup made a request under the federal
Personal Information Protection and Electronic Documents Act for copies of all
of her personal information held by the Blood Tribe. The Blood Tribe complied
with this request except for the legal advice it received from its solicitors.
The Privacy Commissioner demanded copies of the material to verify the
claim to solicitor-client privilege but the Blood Tribe refused to waive the
privilege. Subsequently the Privacy Commissioner issued an order under PIPEDA
to produce the documents.
In November 2003, the Blood Tribe brought an application in Federal Court
for a judicial review of the production order. The application was denied in
The Blood Tribe's solicitors requested that the Law Society of Alberta
intervene in its appeal. The Blood Tribe appealed to the Federal Court of
Appeal where the LSA was granted intervener status.
In October 2006, the appeal was granted and the production order quashed.
In quashing the Commissioner's order, the Federal Court of Appeal recognized
the presumptively inviolate nature of the solicitor-client privilege and held
that PIPEDA did not contain any language allowing the Commissioner to violate
The Court agreed with the LSA's arguments that the provisions of PIPEDA
may allow information obtained by the Commissioner, including solicitor-client
privileged information, to make its way into the hands of public law
enforcement officers which would undermine the confidence and candour of
Canadians when dealing with their lawyers.
The Court also agreed with the LSA that only an actual superior court
could inspect the actual documents to rule on whether solicitor-client
privilege has been properly claimed.
The Privacy Commissioner sought leave to appeal to the Supreme Court of
The LSA engaged the Federation of Law Societies of Canada (FLSC) which
became one of four interveners at the SCC level. Other interveners were the:
Canadian Bar Association, Attorney General of Canada, and the Advocates
A copy of the decision is posted on www.lawsociety.ab.ca
For further information:
For further information: Sheila Serup, Communications, Law Society of
Alberta, 500, 919-11th Ave SW, Calgary, AB, T2R 1P3, Ph. (403) 229-4744