Judgments

T-2222-03

2005 FC 328

Blood Tribe Department of Health (Applicant)

v.

The Privacy Commissioner of Canada and Annette J. Soup (Respondents)

Indexed as: Blood Tribe (Department of Health) v. Canada (Privacy Commissioner) (F.C.)

Federal Court, Mosley J.--Calgary, November 18, 2004; Ottawa, March 8, 2005.

Privacy -- Former employee of applicant sought access to information said improperly collected, used to discredit her -- Applicant ordered to produce records under Personal Information Protection and Electronic Documents (PIPED) Act -- Withheld bundle of letters on ground of solicitor-client privilege -- Issue upon judicial review: whether Commissioner has power to compel production to verify privilege claim -- PIPED Act, s. 12 giving Commissioner tools to independently investigate complaints -- Correctness appropriate review standard -- Law of solicitor-client privilege reviewed -- Although PIPED Act, s. 12(1)(c) permitting Commissioner to receive evidence inadmissible in law court nothing suggesting investigations to be fettered by privilege claims -- Broad, purposive interpretation of Commissioner's powers required, given role in achieving objects of legislative scheme -- Commissioner not investigative agency that could prosecute -- Commissioner having but limited statutory power to divulge information obtained in investigation -- Application denied.

Practice -- Privilege -- Order to produce under Personal Information Protection and Electronic Documents Act resisted in respect of bundle of letters said protected by solicitor-client privilege -- Commissioner's position: had to see letters to verify privilege claim -- Issue upon judicial review whether Commissioner has power to compel jurisdiction -- Review, exposition of law relating to solicitor-client privilege -- Commissioner not investigative agency that could launch criminal prosecution -- Act not authorizing disclosure by Commissioner of information subject to solicitor-client privilege -- Statutory language suggests Commissioner's investigations not to be fettered by privilege claims.

Administrative Law -- Judicial Review -- Certiorari -- Assistant Privacy Commissioner ordering production of records under Personal Information Protection and Electronic Documents Act (PIPED Act) -- Production of certain letters refused on ground of solicitor-client privilege -- Standard of review determined by pragmatic, functional approach mandated by S.C.C. -- As issue being statutory interpretation of Commissioner's powers, Court as well qualified as tribunal to determine matter -- While S.C.C. not having yet ruled as to whether PIPED Act, like Privacy Act, has quasi-constitutional status, F.C. decision held that it has -- Decision to be reviewed on correctness standard.

This was an application for judicial review of an order by the Assistant Privacy Commissioner for the production of records under the Personal Information Protection and Electronic Documents Act (PIPED Act), paragraphs 12(1)(a) and (c). Applicant, Blood Tribe Department of Health, asserted that the records at issue are protected by solicitor-client privilege, which it will not waive.

Respondent, Ms. Soup, formerly a departmental employee, had sought access to personal information concerning her which she believed was improperly collected and used to discredit her. In response to a letter from the Privacy Commissioner's office, departmental documents--except a bundle of letters from the department's solicitors--were furnished to the Commissioner. The Commissioner's office took the position that it had to examine the letters to verify the solicitor-client privilege claim and the Assistant Privacy Commissioner exercised her delegated authority by ordering their production. Rather than complying with that order, the Tribe launched this application. The issue was whether the Commissioner has power to compel the production of documents in respect of which solicitor-client privilege is asserted, for the purpose of verifying that claim.

Held, the application should be dismissed.

Prior to determining this application on its merits, it was first necessary to determine the appropriate review standard. Applying a pragmatic and functional analysis, there is neither a privative clause nor statutory appeal right, thus suggesting that this factor was neutral. But, the Federal Court of Appeal has held that, where review under Federal Courts Act, section 18 is available, an intermediate level of review would be appropriate. As for the tribunal's expertise, the issue herein being statutory interpretation of the Commissioner's powers, the Court was as well qualified to determine that matter as was the Commissioner and this suggested less deference. The third factor relates to the purpose of the statute as a whole and of the particular provision. Certainly, one purpose of the Act is the protection of privacy but that is balanced against the interests of commercial organizations in collecting, using and disclosing personal information. While the Supreme Court has chosen to accord the Privacy Act quasi-constitutional status, it has yet to pronounce on the PIPED Act in that regard. But the Federal Court has held that the last-mentioned statute should enjoy such status. As to the specific provision, PIPED Act, section 12 was intended to provide the Commissioner with the necessary tools to independently investigate a complaint and to prepare a report. At first impression, it would seem that the Commissioner would have to examine the information to determine applicability of the exception, thus suggesting deference to the Commissioner's impugned decision. The final factor is the nature of the issue. Here, the question was one of pure law which favoured review on the correctness standard and, on a balancing of the factors, that standard should be applied herein.

The question of competing rights between the individual respondent and applicant was not determinative. Given the Privacy Commissioner's role in achieving the important objects of the legislative scheme, her powers should be given a broad, purposive interpretation. Her role cannot be discharged if she is denied access to information needed to ascertain the facts merely on the assertion of a privilege claim. As to presumptive privilege, the Privacy Commissioner does not have the power to initiate charges or to prosecute for the commission of offences. She can only investigate and report her findings. Any subsequent action to enforce the complainant's right of access requires an application to the Court. The fact that the letter emanated from the applicant's solicitors indicated that great care must be taken to ensure that, if privileged, their content is not disclosed to anyone other than the Commissioner and only for a limited purpose. Disclosure of this information to the Commissioner would not create an unacceptable level of risk simply because the legislation affords no specific protection once the information gets into the Commissioner's hands and certain sections of the Act actually authorize the Commissioner to make information public. The Commissioner's authority to disclose information obtained in an investigation is limited to the exceptional and limited purposes set out in section 20 which have no application to documents subject to a solicitor-client privilege claim. The Commissioner is not empowered to disclose such information.

Another argument advanced by applicant was that the authority to investigate conferred by section 12 should be interpreted more restrictively than the comparable powers under the Privacy Act and the Access to Information Act because of the absence of a provision similar to subsections 34(2) and 36(2) respectively. The Commissioner's response was that those provisions were included to address claims of Crown privilege when production was demanded from government institutions. Absent these provisions, there would be a conflict between the authority to compel production of documents and section 37 of the Canada Evidence Act that would effectively bar disclosure. Although the argument, that Crown privilege was the reason not to include a similar provision in the PIPED Act, was compelling, no conclusion was reached on this. Nor could it be concluded that Parliament intended to exclude privileged documents from the scope of the Commissioner's authority. Be that as it may, the language of paragraph 12(1)(c), which permits the Commissioner to receive and accept any evidence and other information whether or not it is or would be admissible in a court of law, does not suggest that the Commissioner's investigations are to be fettered by privilege claims.

An analogy was drawn to the review of a claim of national security under Privacy Act, section 51 in which the Privacy Commissioner has authority to review the information to determine whether an exemption has been properly claimed. This is an indication of Parliament's confidence in the Commissioner's ability to protect sensitive information. Paragraph 12(1)(a) accords the Commissioner extraordinary powers to conduct investigations which can be exercised "in the same manner and to the same extent as a superior court of record". A superior court is empowered to compel document production to assess privilege claims and had Parliament intended to prevent the Commissioner from verifying such claims, it could have specifically excluded this power, as it has done in some other statutes. It had to be concluded that the principles established in Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink do not require that PIPED Act, section 12 be given the restrictive interpretation argued for by applicant.

statutes and regulations judicially

considered

Access to Information Act, R.S.C., 1985, c. A-1, s. 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1).

Canada Agricultural Products Act, R.S.C., 1985 (4th Supp.), c. 20, s. 8(2),(5) (as am. by S.C. 1995, c. 40, s. 32).

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 37 (as am. by S.C. 2001, c. 41, s. 43; 2002, c. 8, s. 183(1)(b)).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 8.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 50(3) (as am. by S.C. 1998, c. 9, s. 27), (4) (as am. idem).

Combines Investigation Act, R.S.C. 1970, c. C-23, s. 10(1).

Criminal Code, R.S.C., 1985, c. C-46, s. 488.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 27, s. 71; 2000, c. 17, s. 89; 2001, c. 41, s. 80).

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26).

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10.

Municipal Act, 2001, S.O. 2001, c. 25.

National Defence Act, R.S.C., 1985, c. N-5, ss. 29.21 (as enacted by S.C. 1998, c. 35, s. 7), 29.22 (as enacted idem), 250.41(1) (as enacted idem, s. 82), (2) (as enacted idem).

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 3, 9 (as am. by S.C. 2000, c. 17, s. 97; 2001, c. 41, s. 82), 12, 13(3), 20, Sch. I.

Privacy Act, R.S.C., 1985, c. P-21, ss. 34 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 6), 51 (as am. by S.C. 2002, c. 8, s. 159), 59(1).

Public Inquiries Act, R.S.O. 1990, c. P.41, s. 11.

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 24.1(3) (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 15), (6) (as enacted idem).

cases judicially considered

applied:

Eastmond v. Canadian Pacific Railway (2004), 16 Admin. L.R. (4th) 275; 33 C.P.R. (4th) 1; 254 F.T.R. 169; 2004 FC 852; Canada (Attorney General) v. Canada (Information Commissioner), [2004] 4 F.C.R. 181; (2004), 15 Admin. L.R. (4th) 58; 32 C.P.R. (4th) 464; 255 F.T.R. 46; 2004 FC 431; Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; (1982), 141 D.L.R. (3d) 590; 70 C.C.C. (2d) 385; 28 C.R. (3d) 289; 1 C.R.R. 318; 44 N.R. 462; Lyons v. Toronto (Computer Leasing Inquiry -- Bellamy Commission) (2004), 70 O.R. (3d) 39; (2004), 12 Admin. L.R. (4th) 157; 47 M.P.L.R. (3d) 82; 183 O.A.C. 273 (S.C.J.).

distinguished:

Maranda v. Richer, [2003] 3 S.C.R. 193; (2003), 232 D.L.R. (4th) 14; 178 C.C.C. (3d) 321; 15 C.R. (6th) 1; 113 C.R.R. (2d) 76; 311 N.R. 357; 2003 SCC 67; Shell Canada Ltd. (In re), [1975] F.C. 184; (1975), 55 D.L.R. (3d) 713; 22 C.C.C. (2d) 70; 18 C.P.R. (2d) 155; 29 C.R.N.S. 361 (C.A.); Legal Services Society v. British Columbia (Information and Privacy Commissioner) (2003), 226 D.L.R. (4th) 20; [2003] 3 W.W.R. 399; 14 B.C.L.R. (4th) 67; 182 B.C.A.C. 234; 25 C.P.R. (4th) 5; 2003 BCCA 278; Bre-X Minerals Ltd. (Trustee of) v. Verchere (2001), 293 A.R. 73; 206 D.L.R. (4th) 280; [2002] 2 W.W.R. 71; 97 Alta L.R. (3d) 1; 29 C.B.R. (4th) 1; 12 C.P.C. (5th) 41 (C.A.).

considered:

Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209; (2002), 312 A.R. 201; 217 Nfld. & P.E.I.R. 183; 216 D.L.R. (4th) 257; [2002] 11 W.W.R. 191; 4 Alta. L.R. (4th) 1; 167 C.C.C. (3d) 1; 3 C.R. (6th) 209; 96 C.R.R. (2d) 189; [2002] 4 C.T.C. 143; 2002 DTC 7267; 292 N.R. 296; 164 O.A.C. 280; 2002 SCC 61; R. v. McClure, [2001] 1 S.C.R. 445; (2001), 195 D.L.R. (4th) 513; 151 C.C.C. (3d) 321; 40 C.R. (5th) 1; 80 C.R.R. (2d) 217; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14; Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809; (2004), 238 D.L.R. (4th) 1; 12 Admin. L.R. (4th) 171; 33 C.C.E.L. (3d) 1; 19 C.R. (6th) 203; 47 C.P.C. (5th) 203; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31.

referred to:

Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; 2003 SCC 20; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; 2003 SCC 19; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; amended reasons [1998] 1 S.C.R. 1222; (1998), 11 Admin. L.R. (3d) 130; Englander v. Telus Communications Inc., [2005] 2 F.C.R. 572; (2004), 247 D.L.R. (4th) 275; 1 B.L.R. (4th) 119; 36 C.P.R. (4th) 385; 328 N.R. 297; 2004 FCA 387; Echo Bay Mines Ltd. v. Canada (Minister of Indian Affairs and Northern Development) (2003), 308 N.R. 135; 2003 FCA 270; Lavigne v. Canada (Office of the Commissioner of Official Languages) (1998), 157 F.T.R. 15 (F.C.T.D.); affd (2000), 261 N.R. 19 (F.C.A.); affd [2002] 2 S.C.R. 773; (2002), 214 D.L.R. (4th) 1; 289 N.R. 281; 2002 SCC 53; Rowat v. Canada (Information Commissioner) (2000), 77 C.R.R. (2d) 79; 193 F.T.R. 1 (F.C.T.D.); Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3; (2002), 219 D.L.R. (4th) 385; 49 Admin. L.R. (3d) 1; 22 C.P.R. (4th) 289; 7 C.R. (6th) 88; 99 C.R.R. (2d) 324; 295 N.R. 353; 2002 SCC 75.

APPLICATION for judicial review of the Assistant Privacy Commissioner's order for production of certain records. Application denied.

appearances:

Gary A. Befus for applicant.

Steve Welchner and Nathalie Daigle for respondents.

solicitors of record:

Walsh Wilkins Creighton LLP, Calgary, for applicant.

Nelligan O'Brien Payne LLP, Ottawa, for respondent Annette J. Soup.

Office of the Privacy Commissioner for respondent Privacy Commissioner of Canada.

The following are the reasons for order and order rendered in English by

[1]Mosley J.: In the course of an investigation into a complaint by Annette J. Soup, a former employee of the Blood Tribe Department of Health (the Department), the Assistant Privacy Commissioner of Canada ordered the production of certain records under paragraphs 12(1)(a) and (c) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the PIPED Act). The Department seeks judicial review of the decision to issue that order. It claims that the records are communications to which solicitor-client privilege attaches, and the Department is not willing to waive that privilege.

BACKGROUND

[2]The underlying facts in this matter are not in dispute. Ms. Soup sought access to personal information concerning her held by the applicant. She wished to challenge the accuracy of certain documents she believed had been collected improperly and used, in her view, to discredit her before the Board responsible for the administration of the Department. When Ms. Soup was denied access to the file, she made a complaint to the Office of the Privacy Commissioner.

[3]Under Clause 4.9 "Principle 9--Individual Access", of Schedule I to the PIPED Act, Ms. Soup was entitled to be informed of the existence, use, and disclosure of her personal information, to be given access to that information in order to challenge the accuracy and completeness of the information, and to have it amended as appropriate. The right to access is not absolute. Exceptions are set out in section 9 [as am. by S.C. 2000, c. 17; s. 97; 2001, c. 41, s. 82] of the Act. Subsection 9(3) provides that organizations are not required to give access to information subject to solicitor-client privilege.

[4]In November 2002, a member of the Privacy Commissioner's staff wrote to the Department's Chief Executive Officer, Mr. Charles Weasel Head, to advise that a complaint had been received from Ms. Soup, that an investigation had been commenced and outlining the procedure that would be followed. A copy of any notes or correspondence regarding Ms. Soup's employment was requested. An assurance was provided that the file "will not, under any circumstances, be disclosed to the complainant, nor will the complainant be advised of their contents." This assurance was reiterated in subsequent correspondence between the Commissioner's office, and the Department and its counsel.

[5]In response to the request, documents held by the Department were collected and forwarded to the Commissioner's office, with the exception of a bundle of letters from the Department's solicitors, Walsh Wilkins Creighton LLP. The existence of these letters was disclosed to the Commissioner's office on April 9, 2003.

[6]In an affidavit dated June 5, 2003, Ms. Katie Rabbit-Young Pine attested, on behalf of the Department, that the "information is protected by solicitor-client privilege and the Blood Tribe Department of Health is not prepared to waive that privilege and therefore cannot provide access to these documents to any third party, including the Office of the Privacy Commissioner."

[7]The documents were described specifically in Ms. Rabbit-Young Pine's affidavit as:

a.     Letters written by our legal advisors, Walsh Wilkins Creighton LLP, to the Blood Tribe Department of Health;

b.     The communications were confidential; and

c.     The communications were received as a direct result of the seeking of legal advice by the Blood Tribe Department of Health and were in the form of legal advice from Walsh Wilkins Creighton LLP.

[8]In further communications between the Department and the Commissioner's office, the Department proposed that Ms. Rabbit-Young Pine's affidavit be treated as prima facie evidence that the bundle of letters was subject to privilege. The Commissioner's staff, in turn, took the position that the claim of solicitor-client privilege had to be verified by examining the letters.

[9]On October 27, 2003 Mr. Weasel Head was served with an order for the production of records signed by Heather Black, Assistant Privacy Commissioner of Canada, to whom the authority to order production had been delegated by the Commissioner. The order, issued pursuant to paragraphs 12(1)(a) and (c) of the PIPED Act, required production of "[t]he documents referred to as a bundle of letters from Walsh Wilkins Creighton LLP."

[10]Mr. Weasel Head has not produced the bundle of letters and the Department has brought this application for judicial review challenging the legality of the Assistant Commissioner's order. The Commissioner has not formed an opinion as to whether privilege attaches or does not attach to the documents.

[11]The bundle of letters does not form part of the record before the Court. The Court has not been asked to rule on whether the claim of privilege is well founded with respect to the content of the documents in question, nor is there any evidence on the record to indicate what effect, if any, the content of the letters would have on the Commissioner's investigation.

ISSUE

[12]I frame the issue in these proceedings as follows:

Does the Privacy Commissioner, in the context of investigating an alleged breach of obligations under the PIPED Act, have the authority to compel production of documents over which solicitor-client privilege is asserted, for the purpose of verifying that claim?

THE LEGISLATION IN QUESTION

[13]Part 1 of the PIPED Act deals with the protection of personal information in the private sector. Section 3 describes the purpose of Part I:

3. The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

[14]The authority to compel production of documents from organizations that are the subject of an investigation under Part l of the statute is set out in section 12. The relevant portions of section 12 are paragraphs 12(1)(a) and (c) which state as follows:

12. (1) The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may

(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

. . .

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law; [Emphasis added.]

Standard of Review

[15]Although there was no controversy between the parties on this question, before proceeding to an analysis of the issue, it is necessary to determine the appropriate standard of review. The pragmatic and functional approach directs that four factors must be considered by the Court in determining the standard of review for a particular administrative decision: (1) the existence of any privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court in regard to the question at issue; (3) the purpose(s) of the legislation as a whole and the provisions at issue in particular; and (4) the nature of the question--being law, fact or mixed fact and law: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

[16]With respect to the first factor, there is no privative clause or statutory right of appeal relating to the exercise of the Commissioner's authority under section 12. This would suggest that the factor is neutral. However, the Federal Court of Appeal concluded in Echo Bay Mines Ltd. v. Canada (Minister of Indian Affairs and Northern Development) (2003), 308 N.R. 135 that where review of a decision is available pursuant to section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] of the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. by S.C. 2002, c. 8, s. 14)], an intermediate level of review is suggested.

[17]Second, while the Commissioner's expertise with respect to the conduct of its investigations deserves respect, the central question at issue in these proceedings involves the proper interpretation of the Act as it touches on the powers of the Commissioner during the course of an investigation. The Court is as well suited to answer this question as is the Privacy Commissioner, which suggests less deference.

[18]The third factor relates to the purpose of the statute as a whole and the particular provisions in question. As the Federal Court of Appeal has noted, at least one purpose of the PIPED Act is "undoubtedly directed at the protection of an individual's privacy": Englander v. Telus Communications Inc., [2005] 2 F.C.R. 572, at paragraph 38.

[19]This purpose is balanced with the interests of commercial organizations to collect, use and disclose personal information. The question of where that balance may lie or whether the applicant Department has the right to collect and retain personal information does not arise in these proceedings although I would note that Ms. Soup's complaint contained allegations that information about her had been improperly obtained and used by the Department.

[20]The Supreme Court of Canada has held that the Privacy Act preserves and enhances the autonomy of the individual in a free and democratic society and thus enjoys quasi-constitutional status: Lavigne v. Canada (Commissioner of Official Languages) (1998), 157 F.T.R. 15 (F.C.T.D.); affd (2000), 261 N.R. 19 (F.C.A.); affd [2002] 2 S.C.R. 773. While the Supreme Court has yet to pronounce on whether the PIPED Act should be accorded similar recognition, my colleague Justice Lemieux had no hesitation in reaching that conclusion in Eastmond v. Canadian Pacific Railway (2004), 16 Admin. L.R. (4th) 275 (F.C.), at paragraph 100. I agree, in so far as the statute accords protection to the privacy interests of the individual.

[21]Turning to the purpose of the specific provision in question, section 12 of the PIPED Act was enacted, in my view, to equip the Privacy Commissioner with the necessary tools to independently investigate a complaint and to prepare a report on her findings and recommendations. In this instance, the objective of the investigation is to determine whether the individual's right to examine her personal information, subject to the limitations prescribed by the statute, has been infringed. The relevant limitation in this case is the exception provided by subsection 9(3) which excludes information subject to solicitor-client privilege. It would seem, at first impression, necessary for the Commissioner to examine the information in question so as to assess whether the exception applies. This would suggest deference should be shown to the Commissioner's decision to employ the production order as a means to effectively conduct her investigation.

[22]The final factor is the nature of the issue--is it one of fact, mixed fact and law or a question of pure law? As determined by Dawson J., in Canada (Attorney General) v. Canada (Information Commissioner), [2004] 4 F.C.R. 181 (F.C.), at paragraph 169 and again at paragraph 350, an issue of pure law and statutory interpretation favours a more searching analysis and points to review on the correctness standard. The issue in these proceedings, as framed above, is one of pure law and statutory interpretation. There is no finding of fact or of mixed fact and law at issue.

[23]Balancing the factors, I conclude that the appropriate standard of review of the Commissioner's decision respecting her authority to order production of documents subject to a claim of solicitor-client privilege is correctness. Thus the production order should be set aside if the Commissioner erred in deciding that she had the authority to assess privileged information.

SOLICITOR-CLIENT PRIVILEGE

[24]It is helpful to review the principles that apply to solicitor-client privilege. The substantive rule was formulated by Lamer J. (as he then was) in Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860 [at page 875] as follows:

1.     The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2.     Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3.     When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4.     Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

[25]These principles were reiterated by the Supreme Court of Canada in Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209. At paragraph 36 of the reasons for the majority, Justice Arbour cited the following statement by Major J. in R. v. McClure, [2001] 1 S.C.R. 445, at paragraph 45:

However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such it will only yield in certain clearly defined circumstances and does not involve a balancing of interests on a case-by-case basis. [Underlining added by Arbour J.]

[26]In Lavallee, the Supreme Court concluded that stringent norms were required to ensure the protection of the privilege. Any legislative provision that interferes with solicitor-client privilege more than is absolutely necessary would be labelled as unreasonable. In the specific context before the Court, a challenge to section 488.1 [as enacted by R.S.C., 1985 (1st Supp.), c. 27, s. 71; 2000, c. 17, s. 89; 2001, c. 41, s. 80] of the Criminal Code [R.S.C., 1985, c. C-46] dealing with searches and seizures in lawyers offices, it was held that the enactment violated section 8 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] as it did not meet a standard of minimal impairment of the protected right.

[27]The Supreme Court of Canada had occasion to revisit the subject in Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, which dealt with a legal opinion prepared by in-house counsel. The Ontario Human Rights Commission refused to disclose the opinion in an application for judicial review relating to its decision not to proceed with the investigation of a complaint. The Court concluded that the privilege attached to protect such work, notwithstanding the broad terms of section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 that required filing of the "record of the proceedings in which the decision was made." Justice Major said this for the Court, at paragraph 33:

Legislation purporting to limit or deny solicitor-client privilege will be interpreted restrictively: see Lavallee, supra, at para.18. Solicitor-client privilege cannot be abrogated by inference. While administrative boards have the delegated authority to determine their own protection, the exercise of that authority must be in accordance with natural justice and the common law.

[28]In Canada (Attorney General) v. Canada (Information Commissioner), Justice Dawson of this Court had occasion to review the principles established by the jurisprudence in considering the scope of section 36 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 1] and in particular, subsection 36(2) of the Access to Information Act, R.S.C., 1985, c. A-1. Subsection 36(1) contains broad investigatory powers similar to those provided the Privacy Commissioner under section 12 of the PIPED Act, as does also section 34 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187, Sch. V, item 6] of the Privacy Act, R.S.C., 1985, c. P-21.

[29]In the relevant portion of the case before Justice Dawson, the Information Commissioner had issued a subpoena for the production of certain documents from the Privy Council Office that were said to be subject to solicitor-client privilege. The applicants sought judicial review of that decision. They acknowledged that the Commissioner had, prima facie, the jurisdiction to compel the production of all documents, privileged or not, within the control of a government institution, that are relevant to a matter the Commissioner is investigating. The applicants argued, applying the Lavallee test, the Commissioner could not examine materials subject to a claim of solicitor-client privilege unless it was absolutely necessary to his investigation and that this test had not been met. Thus section 36, and, in particular, subsection 36(2) had to be interpreted restrictively so as to preclude the Commissioner from obtaining the documents.

[30]Subsection 36(2) reads as follows:

36. . . .

(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

[31]In dealing with the argument that subsection 36(2) must be interpreted restrictively, Justice Dawson made these comments at paragraphs 356-358:

First, the jurisprudence of the Court expounds that the Act is to be interpreted in a purposive and liberal manner. To the extent that the Act specifies that decisions on the disclosure of government information should be reviewed independently of government, the applicants' interpretation of subsection 36(2) would impose a significant restriction on the ability of the Commissioner to conduct his investigation and independent review.

Second, had Parliament failed to enact subsection 36(2) of the Act, the principles articulated in Lavallee might well have applied to limit the general power to compel the production of documents which is found in paragraph 36(1)(a) of the Act. However, in my view, by enacting subsection 36(2) Parliament used words that clearly evince its intent that the Commissioner is to have access to any record required by the Commissioner in the course of his investigation, notwithstanding "any other Act of Parliament or any privilege under the law of evidence". To read subsection 36(2) as the applicants submit would, to paraphrase the words of Mr. Justice Létourneau in Canada Post Corp. v. Canada (Minister of Public Works), supra, at paragraph 33, read in limiting words not found there and would circumvent the intention of Parliament.

Third, in my view, this interpretation is consistent with the role of the Commissioner and the whole scheme of the Act. The Commissioner has the statutory duty under the Act to protect the privileged information communicated to him under subsection 36(2) of the Act for his independent review of an access complaint. Sensitive information is to be provided to the Commissioner so that he can properly perform his functions. While in a case the Commissioner might recommend disclosure of a privileged document, he has no power to disclose documents. Where a privileged document is produced to the Commissioner that is not the subject of an access request, but is a document relevant or ancillary to that access request, the Commissioner's ability to use the document in Court in review proceedings without putting the document on the public record is facilitated by the Court's confidentiality rules and practice. The application of this practice is demonstrated in Canada (Information Commissioner) v. Canada (Minister of the Environment) (2000), 187 D.L.R. (4th) 127 (F.C.A.) (Ethyl case).

[32]While the general power to compel production found in section 12 of the PIPED Act is similar to that available to the Information Commissioner under subsection 36(1) of the Access to Information Act, subsection 36(2) and the similar language found in subsection 34(2) of the Privacy Act is not replicated in section 12 of the PIPED Act.

[33]The question of whether a Commissioner appointed under the authority of the Ontario Municipal Act, 2001, S.O. 2001, c. 25 and the Public Inquiries Act, R.S.O. 1990, c. P.41 has the power to compel the production of documents for which solicitor-client privilege is claimed, came before the Ontario Divisional Court in Lyons v. Toronto (Computer Leasing Inquiry--Bellamy Commission) (2004), 70 O.R. (3d) 39 (S.C.J.).

[34]In Lyons, a witness subpoenaed to appear before the inquiry objected to anyone, other than his own solicitor, examining the contents of 18 sealed boxes of documents to determine whether the privilege applied. The Commissioner ordered that the boxes were to be unsealed by Commission counsel and the contents reviewed for relevance and possible solicitor-client privilege. Any questioned documents were to be referred to a Superior Court Justice to determine disputed questions of privilege. In upholding that decision, the Divisional Court held that the screening process adopted by the Commissioner minimally impaired solicitor-client privilege.

[35]Under section 11 of the Public Inquiries Act, nothing was admissible in evidence at the inquiry "that would be inadmissible in a court by reason of any privilege under the law of evidence." Thus, the boxed material, if found to be privileged, could not have been introduced in the inquiry proceedings. In contrast, paragraph 12(1)(c) of the PIPED Act provides that the Privacy Commissioner may receive and accept any evidence and other information "whether or not it is or would be admissible in a court of law."

ANALYSIS

[36]In the applicant's view, there are competing rights at play in these proceedings and they are those of Ms. Soup's right to disclosure of her personnel file and the Department's right to keep confidential documents to which solicitor-client privilege attaches. The applicant argues that the Privacy Commissioner has no independent right to examine the documents in order to determine whether they are privileged or not. The Commissioner, so the argument goes, is a third party against whom the privilege operates as a shield to prevent disclosure of solicitor-client confidences.

[37]The Commissioner, in response, argues that this is a fundamental misconception of the role of her office. The Commissioner, in carrying out her duties, is a neutral ombudsperson, whose role is that of a fact-finder. She makes no findings of civil or criminal liability and does not establish legal entitlements between any parties: Rowat v. Canada (Information Commissioner) (2000), 77 C.R.R. (2d) 79 (F.C.T.D.), at paragraph 28.

[38]I agree with the respondent that the question of competing rights between Ms. Soup and the applicant is not determinative in considering the scope of the authority granted to the Commissioner to perform her duties. Given the central role of the Privacy Commissioner in achieving the important objects of the legislative scheme, that authority should be given a broad and purposive interpretation.

[39]Parliament has given the Commissioner the power to intervene in disputes between individuals and organizations over the retention and use of personal information, the responsibility to determine the facts and the duty to prepare a report on her findings. I agree with the respondent that she cannot effectively perform that role if she is denied access to the information necessary to ascertain the facts merely on the assertion of a claim of privilege.

[40]The applicant acknowledges that the Commissioner has a broad power to compel production but argues that Lavallee requires that her authority must be interpreted restrictively where the documents that the Commissioner seeks to examine are presumptively privileged. In this case, the applicant submits, the documents described as a "bundle of letters" from its solicitors should be presumed to fall within the scope of the privilege, without examination: Maranda v. Richer, [2003] 3 S.C.R. 193.

[41]Maranda dealt with the search of a lawyer's office by the police in the course of an investigation into suspected drug trafficking and money laundering. The police were looking for evidence in relation to the suspected transfer of property, obtained by crime, to the lawyer as payment for his services. In upholding the trial Judge's finding that the search was unreasonable under section 8 of the Charter--and the authorizing legislation unconstitutional--the Supreme Court held that solicitor-client privilege should be presumed to apply to lawyers' billings for fees and disbursements. Maranda clarified that in the criminal law context, the only exceptions to the principle of confidentiality that will be tolerated would be limited, strictly defined and strictly controlled to avoid lawyers becoming a resource to be used in the prosecution of their clients, thus jeopardizing the constitutional protection against self-incrimination enjoyed by their clients.

[42]The applicant relies also upon the decision of the Federal Court of Appeal in Shell Canada Ltd. (In re), [1975] F.C. 184 (C.A.) which held that the broad investigative powers in subsection 10(1) of the Combines Investigation Act, R.S.C. 1970, c. C-23 did not directly or by implication abrogate the doctrine of solicitor-client privilege. This decision was one of the first to hold that the privilege was more than just a rule of evidence controlling the use of privileged material as evidence. The Court concluded that the Director was not entitled to have access to documents in respect to which the privilege existed for the purpose of his investigation. As stated by Chief Justice Jackett at page 194, this would be a "compulsory form of pre-prosecution discovery" breaching a fundamental conception of justice.

[43]Both Maranda and Shell Canada dealt with the collection of evidence to support criminal prosecutions. Privileged material was at risk of disclosure to the very investigative agencies that could pursue criminal charges against the lawyers' clients. That situation does not arise in this context. The Privacy Commissioner does not have the power to initiate charges or to prosecute for the commission of offences. She can only investigate and report her findings. Any subsequent action to enforce the complainant's right of access requires an application to the Court.

[44]The fact that the letters in question emanated from the applicant's solicitors does indicate that great care must be taken to ensure that, if privileged, their content is not disclosed to the complainant or to any person, other than to the Commissioner and only for a limited purpose. I am not persuaded by the applicant's arguments that there is a substantial and unacceptable risk of broader disclosure.

[45]An assurance of confidentiality was offered at the outset of the investigation in respect of all of the information sought from the applicant. That assurance is, in my view, supported by the scheme of the Act.

[46]Subsection 20(1) of the PIPED Act states as follows:

20. (1) Subject to subsections (2) to (5), 13(3) and 19(1), the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner's duties or powers under this Part.

[47]The applicant contends that disclosing privileged information to the Commissioner would create an unacceptable level of risk, because the legislation provides no specific protection for the material once it comes into the hands of the Commissioner, and by contrast, there are a number of sections of the PIPED Act that allow the Commissioner to make information public: subsections 20(2),(3),(4) and 13(3).

[48]The applicant finds support for its argument in Legal Services Society v. British Columbia (Information and Privacy Commissioner) (2003), 226 D.L.R. (4th) 20, where the British Columbia Court of Appeal held that a decision by the provincial Information and Privacy Commissioner that placed solicitor-client privilege at risk was not acceptable, even if it was, in other respects, "reasonable". The decision in question was an order to disclose to a journalist the names of the lawyers who were the top five "billers" to the Legal Services Society. At issue was the right to access information held by a publicly funded organization that administered the legal aid program in the province. The Court of Appeal, in balancing the access interest with the principle of solicitor-client privilege, concluded that such disclosure posed an unacceptable risk of revealing confidential information concerning the lawyers' clients.

[49]That risk does not arise, in my view, with respect to the Commissioner's decision to order production under the PIPED Act. Her authority to disclose information obtained in the course of an investigation is limited to the exceptional and limited purposes set out in section 20. Her authority does not include disclosure to the complainant, as was ordered in the Legal Services Society case. The section 20 exceptions have no application, in my view, to documents subject to a claim of solicitor-client privilege and the Commissioner is not empowered to disclose such information.

[50]The applicant argues that the authority to investigate in section 12 must be interpreted more restrictively than the comparable powers in the Privacy Act and the Access to Information Act because of the lack of a provision similar to subsections 34(2) and 36(2) respectively. The applicant contends that this indicates that Parliament has deliberately chosen to exclude privileged documents from the scope of the Commissioner's powers under the PIPED Act and the Commissioner cannot rely on the general wording of section 12 to violate solicitor-client privilege: Pritchard v. Ontario (Human Rights Commission).

[51]The Commissioner, in response, argues that subsection 36(2) of the Access to Information Act, and subsection 34(2) of the Privacy Act, were enacted to address potential claims of Crown privilege when production was demanded from the government institutions to which those statutes apply. Absent these subsections, there would be a conflict between the authority to compel production of documents, possibly covered by Crown privilege, in these statutes and section 37 [as am. by S.C. 2001, c. 41, s. 43; 2002, c. 8, s. 183(1)(b)] of the Canada Evidence Act [R.S.C., 1985, c. C-5] that would effectively bar disclosure. This conflict does not arise with respect to the private sector where the PIPED Act operates.

[52]I cannot conclude from the record before me that Crown privilege is the reason for the legislature's choice to not include a similar provision in the PIPED Act, although I find the argument compelling. However, neither can I conclude that Parliament's intent was to exclude privileged documents from the scope of the Commissioner's authority. I note that paragraph 12(1)(c) provides that the Commissioner may receive and accept any evidence and other information whether or not it is or would be admissible in a court of law. That language suggests that Parliament did not intend the Commissioner's investigations to be fettered by questions of privilege.

[53]I note that Pritchard concerned an application by the complainant to gain access to a legal opinion prepared by Ontario Human Rights Commission counsel and is not directly on point in this matter. While the principles expressed are of general application, at issue was whether the opinion had to be included as part of the record of the proceedings in the complainant's application for judicial review of the Commission's decision. I would interpret the decision to support the Privacy Commissioner's contention in this case, that privileged material in her hands would be protected from any demand for disclosure.

[54]The applicant cites the decision of the Alberta Court of Appeal in Bre-X Minerals Ltd. (Trustee of) v. Verchere (2001), 293 A.R. 73 for the proposition that disclosure of privileged information cannot be compelled by a trustee, a role the applicant argues is comparable to that of the Commissioner in these proceedings. Bre-X dealt with the efforts of a trustee in bankruptcy to waive the bankrupt's privilege in order to pursue its assets. The Court held the privilege was personal and was not conveyed to the trustee when he assumed control of the bankrupt's business interests. Further, there was no clear statutory authority making privileged communications subject to production. There is no analogy to the role of the Commissioner in these proceedings.

[55]In my view, a closer analogy can be drawn to the review of claims of national security by a government institution under section 51 [as am. by S.C. 2002, c. 8, s. 159] of the Privacy Act, in response to demands for access to personal information. In such cases, the Privacy Commissioner has the authority to review the information to determine whether an exemption has been properly claimed: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, at paragraph 47. I agree with the respondent that this is an indication of Parliament's confidence in the Commissioner's ability to protect sensitive information.

[56]The Commissioner is given extraordinary powers to allow her to effectively conduct investigations. Those powers, both procedural and substantive, can be exercised "in the same manner and to the same extent as a superior court of record" [underlining added] (paragraph 12(1)(a)).

[57]A superior court has the power to compel production of documents to assess claims of privilege. Had Parliament intended to prevent the Commissioner from verifying claims of privilege, it could have specifically excluded this power, as it has done under several other Acts: Canada Agricultural Products Act, R.S.C., 1985, (4th Supp.), c. 20, subsections 8(2), 8(5) [as am. by S.C. 1995, c. 40, s. 32]; Canadian Human Rights Act, R.S.C., 1985, c. H-6, subsections 50(3) [as am.by S.C. 1995, c. 40, s. 32], (4) [as am. idem]; National Defence Act, R.S.C., 1985, c. N-5, subsections 29.21 [as enacted by S.C. 1998, c. 35, s. 7], 29.22 [as enacted idem], 250.41(1) [as enacted idem, s. 82], (2) [as enacted idem]; Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, subsections 24.1(3) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 15], (6) [as enacted idem].

[58]Having regard to the overall scheme of the statute and the Commissioner's responsibility to conduct an effective investigation, the principles enunciated by the Supreme Court of Canada in Lavallee do not, in my view, require that section 12 of the PIPED Act be given the restrictive interpretation called for by the applicant. The production order issued by the Commissioner will not limit or deny any solicitor-client privilege that the applicant may enjoy in the questioned documents. I am satisfied that in order to complete her investigation it is necessary that the claim of privilege be assessed by the Commissioner to determine whether it properly applies to the questioned documents or not. That will not prevent the applicant from continuing to assert the claim in any other proceedings that may arise in relation to the complaint.

[59]Accordingly, the Commissioner correctly exercised her authority to issue the production order and this application will be dismissed. As the question of interpretation of the scope of the PIPED Act in relation to solicitor-client privilege appears to have arisen for the first time in these proceedings, I will exercise my discretion to make no order of costs in favour of the successful party.

ORDER

This Court orders that the application is dismissed. The parties shall bear their own costs.

la demande est rejetée; chacune des parties supportera ses propres dépens.

¹  Under s. 59(1) of the Privacy Act, R.S.C., 1985, c. P-21. S. 12(3) of the PIPED Act contains a similar authority. No issue was made of the delegation in these proceedings.