University of Calgary v JR, 2013 ABQB 652

Court of Queen ’ s Bench of Alberta Citation: University of Calgary v JR, 2013 ABQB 652 Date: 20131104 Docket: 1001 16269 Registry: Calgary Between: The Board of Governors of the University of Calgary Applicant - and - J.R. and The Information and Privacy Commissioner of Alberta Respondents -and- The Law Society of Alberta Intervener _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice C.M. Jones _________________________________________ ______________ Introduction

[ 1 ] This case considers the statutory

interpretation of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F- 25 (“FOIPP”). The Alberta Court of Appeal in Alberta (Information and Privacy Commissioner) v Alberta (Freedom of Information and Protection of Privacy Act Adjudicator ), 2011 ABCA 36 at para 15 , 502 AR 339, described privacy legislation as a complex web: Each act is a web, or more accurately a maze, which makes them difficult to interpret. Their enactment has resulted in an entire new area of law requiring specialists who traverse their intricacies.

To suggest that they are user unfriendly is an understatement. [ 2 ] Complex or not, the task before me is to interpret s 56(3) of FOIPP and determine the legislature’s intention. The Office of the Information and Privacy Commissioner of Alberta (the “Commissioner”) takes the position that she and those to whom she has delegated her authority are empowered under s 56(3) to compel a public body to produce records when necessary for the purpose of verifying the public body’s asserted claim of solicitor-client privilege.

The Commissioner’s views are opposed by the Applicant, the Board of Governors of the University of Calgary (the “University”) and by the Intervener, the Law Society of Alberta (the “LSA”). [ 3 ] Should this Court show deference to the Commissioner’s views and if deference is not warranted, does this Court believe she is correct in her

interpretation of FOIPP ? These questions and the related question of whether the procedures followed by the Commissioner in fulfilling her mandate under FOIPP are minimally intrusive to solicitor-client privilege are the central issues in this case. I. Overview [ 4 ] This matter came before me on March 7 and 8, 2012 with further argument before me on May 31 and June 1, 2012. Counsel made further written submissions on September 14 and 28, 2012. [ 5 ] The University seeks judicial review of a decision made in the course of an inquiry by an adjudicator, Mr.

Wade Riordan Raaflaub (the “Adjudicator”), acting under a delegation of authority from the Commissioner. Mr. Raaflaub directed the University produce documents in respect of which it asserted solicitor-client privilege for his review for the purpose of verifying the claim of privilege. [ 6 ] The University asserts the Commissioner, and by extension the Adjudicator, lacks jurisdiction under FOIPP to compel production of solicitor-client privileged records. The LSA intervenes in support of the University’s position.

The Commissioner argues in support of the Adjudicator’s authority. [ 7 ] To provide structure to the analysis which follows, I begin by providing the background and context to this dispute (II). I then examine solicitor-client privilege, its special status within our justice system, and its application to the access to information context (III). [ 8 ] This matter focuses on the proper

interpretation of FOIPP , with specific reference to the Commissioner’s power to compel production of records. I proceed to identify the various provisions of FOIPP which bear on this analysis (IV). [ 9 ] The Commissioner initially argued this judicial review was premature. I discuss the Commissioner’s objections in this regard, noting why I reject her arguments and my reasons for proceeding (V). [ 10 ] I then briefly discuss the nature of judicial review and what it seeks to achieve.

This discussion leads logically to consideration of the standard of review against which the Adjudicator’s decision should be judged. Not surprisingly, the parties’ opinions differ on this point. Accordingly, I articulate the two questions which I believe require resolution and select the standard of review applicable to each (VI). [ 11 ] Certain principles guide my

interpretation of FOIPP . I examine what I believe to be the proper approach to statutory

interpretation (VII). Finally, having articulated the questions and determined the appropriate standard of review and armed with the principles of statutory

interpretation, I consider the relevant case law and apply the standard of review and interpretive principles to the two questions (VIII and IX). [ 12 ] Lastly, I summarize my conclusions (X). II. Background [ 13 ] This matter devolves from an access to information request, filed pursuant to FOIPP , seeking access to certain records (the “Records”) in the University’s possession. [ 14 ] The University was sued by a former employee, (the “Former Employee”).

The Former Employee alleged constructive dismissal and sought the Records, which included communications between the University’s in-house legal counsel and its external legal counsel related to her employment. [ 15 ] The University disclosed some records in response to the Former Employee’s request but refused to produce the Records in issue, asserting they were subject to solicitor-client privilege.

The Former Employee brought an application under FOIPP seeking production of the withheld Records. [ 16 ] In the course of the subsequent inquiry, the Adjudicator, who acts on the Commissioner’s behalf and pursuant to her legislative authority in conducting the inquiry, issued a Notice to Produce Records (the “Notice”) on October 20, 2010. The Notice directed the University to provide him with the Records so he could determine whether solicitor-client privilege had been properly asserted. The University seeks to quash this Notice.

[17] The following timeline will assist in understanding the events leading to the application before me: 1. September 2007 – The Former Employee commences employment with the University; 2. May 2008 – The University advises the Former Employee of changes relating to her employment; 3. May 2008 to Fall 2008 – The Former Employee challenges the University’s actions regarding the change in her position and hertreatment by the University in relation to her subsequent medical leave; 4. August 2008 – The University seeks advice from in-house counsel and external legal counsel; 5.

October 2008 – The Former Employee commences an action against the University alleging, inter alia, constructive dismissal; 6. October 2008 – The Former Employee gives the University a Request to Access Information; 7. February 2009 – The University’s Access and Privacy Coordinator provides the Former Employee with documentation; 8.

March 2009 – The Former Employee requests a review pursuant to FOIPP of the University’s response to her request for access torecords, questioning whether records were missing from the University’s response and whether the University appropriately severed orremoved information under FOIPP; 9. January 2010 – A FOIPP-appointed mediator issues a report after investigating and trying to settle the matter between theUniversity and the Former Employee. The report indicates the University has conducted an adequate search for records.

Further, themediator finds the University properly identified most (but not all) of the information as “non-responsive” and properly applied sectionsof the Act to most (but not all) of the information in its response to the Former Employee’s request; 10. June 2010 – On the Former Employee’s request, the Commissioner issues a Notice of Inquiry directing the parties to make writtensubmissions.

The Notice of Inquiry asks the University to provide to the Adjudicator a copy of the Records over which it assertssolicitor-client privilege or copies of an affidavit or unsworn evidence verifying solicitor-client privilege over the Records; 11. August 2010 – The University declines to provide the Adjudicator with documents it asserts are subject to solicitor-client privilege,providing a list of documents identified by page number only; 12. September 2010 – The Adjudicator directs the University to substantiate its assertion the Records are subject to solicitor-clientprivilege.

The University is given the option of either providing the Records to the Adjudicator or complying with the Solicitor-ClientPrivilege Adjudication Protocol (the “Protocol”) issued by the Office of the Commissioner; 13. October 2010 – The University declines to comply with the Adjudicator’s request, reasserting its claim to solicitor-client privilegeover the Records; 14. October 2010 – The Adjudicator issues a Notice to Produce.

The Notice to Produce purports to require the University to provide theAdjudicator with a copy of the Records so the Adjudicator can review them and determine whether solicitor-client privilege has beenproperly claimed. The University does not comply with the Notice to Produce; 15. October 29, 2010 – The University commences the present application for judicial review of the Adjudicator’s decision to issue aNotice to Produce; 16. June 2011 – The court grants the LSA intervener status to participate in the judicial review. III.

Solicitor-Client Privilege [18] Solicitor-client privilege, its importance in our legal system, the legislative language required to abrogate it, and the extent ofany such abrogation in the context of a particular enactment are at the heart of this judicial review. In the relatively recent Supreme Courtof Canada decision Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574 (“BloodTribe”), the court summarized the key principles related to solicitor-client privilege: 1.

Solicitor-client privilege is fundamental to the proper functioning of our legal system and it must be as close to absolute as possibleto ensure public confidence and retain relevance (at para 9). 2. While it may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactionsbetween a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer (at para 10). 3.

Solicitor-client privilege cannot be abrogated by inference from open-textured language; express words are necessary to permit aregulator or other statutory official to ‘pierce’ the privilege (at para 2 & 11). [19] These observations affirmed the court’s earlier comments in Solosky v The Queen, (SCC), [1980] 1 SCR 821at 833 (“Solosky”), in which Dickson J noted “the concept of privileged communications between a solicitor and his client has long beenrecognized as fundamental to the due administration of justice”. [20] The Supreme Court of Canada described the elevation of solicitor-client privilege from a rule of evidence to a substantive rulein Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860 at 875 (“Descôteaux”), making reference to its earlierdiscussion of the privilege in Solosky:

It is quite apparent that the Court in that case applied a standard that has nothing to do with the rule of evidence, the privilege, since there was never any question of testimony before a tribunal or court. The Court in fact, in my view, applied a substantive rule , without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule. [Emphasis added.] [ 21 ] The Supreme Court of Canada described the rule as follows in Descôteaux at 875: 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. [Emphasis added.] [ 22 ] This view of solicitor-client privilege was reiterated in Goodis v Ontario (Ministry of Correctional Services ), 2006 SCC 31 at para 20 , [2006] 2 SCR 32 (“ Goodis ”), in which the court emphasized the high threshold required to meet the absolute necessity test articulated in Descôteaux : Absolute necessity is as restrictive a test as may be formulated short of an absolute prohibition in every case. [ 23 ] The same stringent requirements appear to apply even in the access to information context.

At para 25 of Goodis the Court noted: I am mindful that openness of the court’s process is a recognized principle. However, as with all general principles, there are exceptions. Records that are subject to a claim of solicitor-client privilege in an access to information case are such an exception.

Absent absolute necessity in order to achieve the end sought by the enabling legislation, such records may not be disclosed.[Emphasis added.] While this passage highlights the importance of solicitor-client privilege, it also suggests solicitor-client privileged records may be disclosed where “absolutely necessary” to “achieve the end sought by” access to information legislation. [ 24 ] A further example of the Supreme Court’s views on the importance of guarding solicitor-client privilege from erosion can be found in Lavallee, Rackel & Heintz v Canada (Attorney General ), 2002 SCC 61 , [2002] 3 SCR 209 (“ Lavallee ”), in which the court confirmed the privilege must be nearly absolute and exceptions to it will be rare, referring to its comments in R v McClure , 2001 SCC 14 at para 2 , [2001] 1 SCR 445: Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.

This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.

At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented. [Emphasis added.] [ 25 ] Further, in Pritchard v Ontario (Human Rights Commission ), 2004 SCC 31 at para 17 , [2004] 1 SCR 809: The privilege is jealously guarded and should only be set aside in the most unusual circumstances, such as a genuine risk of wrongful conviction. [Emphasis added.] [ 26 ] More recently, the British Columbia Supreme Court made the following observations about solicitor-client privilege in British Columbia (Auditor General) v British Columbia (Ministry of Attorney General ), 2013 BCSC 98 at paras 23-25 , 40 BCLR (5th) 390 (“ BC Auditor General ”): ….I state my conclusion: here, as in so many other cases of conflict between other values and the principle of solicitor-client privilege, the privilege must be protected; it must prevail against abrogation by inference.

Solicitor-client privilege , as the case law repeatedly reminds us, is fundamental to the proper functioning of our legal system. It is virtually an absolute privilege and must remain so. Properly understood, the privilege does not act as a shield, obscuring from view matters that should be publically aired.

But that is the reaction of many in this contest between those who assert the privilege and the Auditor General in his quest for "transparency" and "accountability" Solicitor-client privilege is not a lawyer's "trick" to avoid proper scrutiny of her client's conduct or the steps taken on his or her behalf during the retainer, it is a critical civil right. All citizens must be able to freely discuss their legal positions with their lawyers and to take frank advice thereon, secure in the knowledge that this relationship - that between solicitor and client - is as sacred as any secular business relationship can be.

It would be wrong to conclude that the result in this case represents the triumph of secrecy over transparency and accountability. It rather represents the reaffirmation of a principle which is a cornerstone value in our democracy and which has been so for hundreds of years. While the privilege may be abrogated by legislation, clear and unambiguous language doing so is required and even then the legislation must be consistent with the Charter. [Emphasis added.]

[ 27 ] Fundamental to our system of justice, to be jealously guarded, more than a rule of evidence, solicitor-client privilege is not to be abrogated by inference. What does it mean to abrogate solicitor-client privilege? [ 28 ] As discussed in detail below, in Blood Tribe the Supreme Court of Canada considered it to be an “abrogation” of solicitor- client privilege when the Federal Privacy Commissioner attempted to compel production of records alleged to be subject to solicitor- client privilege (so the Federal Privacy Commissioner could verify the claim to that privilege).

As such, we may conclude that the Commissioner’s Notice to Produce in this case presumptively gives rise to an abrogation of solicitor-client privilege, as that term is understood by the Supreme Court of Canada. The question remains: does FOIPP permit the abrogation of solicitor-client privilege? IV. Legislative Framework [ 29 ] FOIPP seeks, in part, to provide guidelines for resolving conflicts between public bodies which have assembled records and persons who want to access those records.

It provides a framework in which the competing interests of disclosure and privacy may be resolved. [ 30 ] Given the task before this court is one of statutory

interpretation, it is important to review the relevant legislative provisions. In doing so, it is helpful to bear in mind the question before this Court: Do the provisions of FOIPP collectively empower the Commissioner to compel production of records, for review by the Commissioner, which a public body asserts are subject to solicitor- client privilege? [ 31 ] The review below follows the scheme of FOIPP , considering: A.

Definitions which are relevant to an understanding of FOIPP in this case; B. The objects sought to be achieved by FOIPP ; C. The scope or extent of FOIPP ’s purported application; D. Rights of access to information that FOIPP seeks to grant and to limit; E. The Commissioner’s powers and duties; and F. Resolution of disputes between public bodies and persons seeking access to records in the possession of those public bodies. A. Relevant

Definitions [ 32 ] An “adjudicator” is defined by the Act to mean a judge of the Court of Queen’s Bench appointed under

section 75. It is to be distinguished from the use of the term Adjudicator in these reasons, meaning the decision-maker (in this case Mr. Raaflaub) carrying out the Commissioner’s delegated authority in conducting an inquiry. [ 33 ] An “applicant” is a person who makes a request for access under section 7(1) to a record in the custody or control of a public body. A “public body” includes a “local public body”, which includes an “educational body”, which includes a university. In this case, the Former Employee is the “applicant” and the University is the “public body”. [ 34 ] “Commissioner” means the Information and Privacy Commissioner appointed under

Part 4;

Part 4 outlines the powers and duties of the Commissioner. B. Objects and Purposes of FOIPP [ 35 ]

Section 2 sets out the purposes of FOIPP : 2 The purposes of this Act are

a) to allow any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions as set out in this Act ,

b) to control the manner in which a public body may collect personal information from individuals, to control the use that a public body may make of that information and to control the disclosure by a public body of that information,

c) to allow individuals, subject to limited and specific exceptions as set out in this Act , a right of access to personal information about themselves that is held by a public body,

d) to allow individuals a right to request corrections to personal information about themselves that is held by a public body, and

e) to provide for independent reviews of decisions made by public bodies under this Act and the resolution of complaints under this Act. [Emphasis added.] [ 36 ]

Section 2 identifies the competing goals of providing access to information, on the one hand, and limiting access to that information in exceptional cases, on the other. The exceptions are said to be “limited” and “specific”. This

section also states that FOIPP seeks to provide a mechanism by which decisions of public bodies, such as the University’s decision not to disclose records in respect of which it asserts solicitor-client privilege, may be reviewed and disputes resolved.

C. Scope of FOIPP [ 37 ]

Section 3 of FOIPP provides, inter alia, that: 3 This Act (

a) is in addition to and does not replace existing procedures for access to information or records, ... (

c) does not limit the information otherwise available by law to a party to legal proceedings, (

d) does not affect the power of any court or tribunal in Canada to compel a witness to testify or to compel the production of documents, … [Emphasis added.] [ 38 ] Thus, FOIPP expressly states it is a supplement to, and not in substitution for, (

i) existing procedures for access to information or records generally; (ii) rights of access to information or documents otherwise available to litigants as a matter of law; and, (iii) powers otherwise vested in a court or tribunal to compel production of documents. [ 39 ]

Section 4 of FOIPP indicates it “applies to all records in the custody or under the control of a public body, including court administration records” except for those records itemized in subsections (

a) through (u). The identified exceptions do not mention documents alleged to be subject to solicitor-client privilege, leading to the inference the legislature intended such documents to be within the scope of FOIPP. [ 40 ]

Section 5 of FOIPP suggests it prevails over other legislation if there is any inconsistency or conflict between FOIPP and other legislative provisions: 5 If a provision of this Act is inconsistent or in conflict with a provision of another enactment, the provision of this Act prevails unless (

a) another Act, or (

b) a regulation under this Act expressly provides that the other Act or regulation, or a provision of it, prevails despite this Act. [Emphasis added.] D. Rights of Access [ 41 ]

Section 6 provides for applicants’ rights of access to records: 6(1) An applicant has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.

(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record, an applicant has a right of access to the remainder of the record. [Emphasis added.] [ 42 ] An applicant must make a written request for a copy of a record held by a public body or for permission to examine the record (s 7). The public body must tell the applicant whether access to the record or part of it is granted or denied, and if denied, the reasons for the denial and the provision of the Act on which the denial is based.

The applicant may then seek review by the Commissioner of the public body’s decision to deny access. [ 43 ] The exceptions to disclosure are set out in sections 16 to 29. They include exceptions where disclosure would be harmful to personal privacy, to individual or public safety, to law enforcement, to intergovernmental relations, to the business interests of a third party, etc. Most relevant here is the exception from disclosure for privileged information.

Section 27 provides: 27(1) The head of a public body may refuse to disclose to an applicant (

a) information that is subject to any type of legal privilege, including solicitor-client privilege or parliamentary privilege…

(2) The head of a public body must refuse to disclose information described in subsection (1)(

a) that relates to a person other than a public body. [Emphasis added.] [ 44 ] The legislature clearly understood the concept of solicitor-client privilege and intended to limit disclosure of solicitor-client privileged documents to applicants. While expressly allowing a public body to deny disclosure of such information to an applicant, sections 6 and 27 do not expressly authorize the public body to refuse to disclose such information to the Commissioner. [ 45 ]

Section 27 also manifests the legislature’s appreciation that solicitor-client privilege is a subset of a larger set of legal privileges (“any type of legal privilege, including solicitor-client privilege”). This observation takes on added importance in connection with the discussion below regarding the

interpretation of section 56(3) and its reference to “any privilege of the law of evidence”. E. The Commissioner’s Powers and Duties [ 46 ]

Section 53 vests the Commissioner with responsibility for ensuring the purposes of FOIPP are fulfilled and grants the

Commissioner power to conduct investigations to ensure compliance with the Act. It follows the Commissioner would be expected to understand the purposes of FOIPP. One of those purposes, as noted in section 27(1)(

a) when read in conjunction with

section 2, is the protection of information subject to solicitor-client privilege. Another purpose, as articulated in

section 2(e), is to provide for independent review of decisions made by public bodies and the resolution of complaints. Thus, it appears

section 53 makes it the Commissioner’s job to apply FOIPP, being mindful of (

i) what FOIPP seeks to achieve; (ii) the rights of access it purports to grant; and, (iii) the denial of access it purports to allow in respect of records subject to solicitor-client privilege. [ 47 ]

Section 56 provides, in part: 56(1) In conducting an investigation under section 53(1)(

a) or an inquiry under

section 69 or 74.5 or in giving advice and recommendations under

section 54, the Commissioner has all the powers, privileges and immunities of a commissioner under the Public Inquiries Act and the powers given by subsection (2) of this section.

(2) The Commissioner may require any record to be produced to the Commissioner and may examine any information in a record , including personal information whether or not the record is subject to the provisions of this Act.

(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2) . [Emphasis added.] [ 48 ] The Public Inquiries Act , RSA 2000, c P-39, does not authorize the Commissioner to compel production of documents. Accordingly, the scope of the Commissioner’s powers under sections 56(2) and (3) are at the heart of this case.

The University and the LSA assert the language is not sufficiently clear to find that the legislature intended the Commissioner’s powers to compel production to extend to documents in respect of which a public body asserts solicitor-client privilege. The Commissioner takes the opposite position. [ 49 ]

Section 57 of FOIPP provides: 57(1) A statement made or an answer given by a person during an investigation or inquiry by the Commissioner is inadmissible in evidence in court or in any other proceeding, except (

a) in a prosecution for perjury in respect of sworn testimony, (

b) in a prosecution for an offence under this Act, or (

c) in an application for judicial review or an appeal from a decision with respect to that application. (2) Subsection (1) applies also in respect of evidence of the existence of proceedings conducted before the Commissioner. [Emphasis added.] This

section makes the statements and answers given during an investigation or inquiry inadmissible in other proceedings, except specified prosecutions and judicial review hearings and appeals therefrom. [ 50 ]

Section 58 provides: Anything said, any information supplied or any record produced by a person during an investigation or inquiry by the Commissioner is privileged in the same manner as if the investigation or inquiry were a proceeding in a court. [Emphasis added.] [ 51 ] The meaning of this

section is not entirely clear. Justice Thomas opined in Alberta (Information and Privacy Commissioner) v Alberta Federation of Labour, 2005 ABQB 927 , 37 Admin LR (4th) 314 (“ Alberta Federation of Labour ”) that it is an immunity privilege in the sense that the speaker or supplier of information is protected from any legal action for having made the statement, much as such statements or information would be absolutely privileged in court.

He explained at para 22: …In my view, these words show that the Alberta Legislature intended to confer an immunity privilege or absolute privilege on participants in an inquiry conducted by the Commissioner so that they would be protected from claims such as defamation actions. [ 52 ] In McBreairty v College of the North Atlantic , 2010 NLTD 28 , 293 Nfld & PEIR 321, Seaborn J considered a similar provision of the Newfoundland legislation and concluded it required non-disclosure of documents submitted to the Newfoundland Information and Privacy Commissioner (“the NFLD Commissioner”) during an inquiry.

The judge also held the provision preserved the privilege in documents submitted to the NFLD Commissioner for review: they did not lose their privileged status and remained exempt from disclosure if sought in a later unrelated access request (at para 107). [ 53 ] My understanding of this

section is that, as with court proceedings, there is an implied undertaking that records disclosed in the course of an inquiry will be used only in connection with the matter before the tribunal and for no other purpose. [ 54 ]

Section 59 relates to restrictions on disclosure of information acquired by the Commissioner and her staff: 59(1) The Commissioner and anyone acting for or under the direction of the Commissioner must not disclose any information obtained in performing their duties, powers and functions under this Act, except as provided in subsections (2) to (5).

(2) The Commissioner may disclose, or may authorize anyone acting for or under the direction of the Commissioner to disclose information that is necessary to (

a) conduct an investigation or inquiry under this Act, or (

b) establish the grounds for findings and recommendations contained in a report under this Act.

(3) In conducting an investigation or inquiry under this Act and in a report under this Act, the Commissioner and anyone acting for orunder the direction of the Commissioner must take every reasonable precaution to avoid disclosing and must not disclose (

a) any information the head of a public body would be required or authorized to refuse to disclose if it were contained in arecord requested under section 7(1), or (

b) whether information exists, if the head of a public body in refusing to provide access does not indicate whether the informationexists.

(4) The Commissioner may disclose to the Minister of Justice and Solicitor General information relating to the commission of anoffence against an enactment of Alberta or Canada if the Commissioner considers there is evidence of an offence.

(5) The Commissioner may disclose, or may authorize anyone acting for or under the direction of the Commissioner to disclose,information in the course of a prosecution, application or appeal referred to in

section 57. [Emphasis added.] [55] These sections give the Commissioner discretion to decide what, if any, disclosure is necessary in the conduct of aninvestigation or inquiry or to substantiate findings in the Commissioner’s report. The legislation does not spell out criteria by which theCommissioner’s decision in this regard may be assessed, other than those the Commissioner might establish. [56] This said, section 59(3) prohibits the Commissioner from disclosing any information the public body is authorized to refuse todisclose.

Thus, if a public body were entitled to deny disclosure of records to an applicant, including those subject to solicitor-clientprivilege, then the Commissioner also is prohibited from disclosing such records. [57] As Thomas J said in Alberta Federation of Labour at para 23: “In my view, this provision does nothing more than impose aduty on the Commissioner or its delegates during an inquiry to take all reasonable precautions to avoid disclosing and to not disclosetypes of records as are involved in this case.” [58] Orsborn CJ made similar comments in relation to the identical provision of the Newfoundland information and privacylegislation in Newfoundland & Labrador (Information & Privacy Commissioner) v Newfoundland & Labrador (Minister for theDepartment of Business), (NL SC), 2012 NLTD 28 at para 78, 319 Nfld & PEIR 63: This provision contemplates that certain records may come into the hands of the Commissioner during the course of an investigation; theCommissioner is required to take reasonable steps to avoid disclosure.

However, it is clear that the information which the Actcontemplates may be made available to the Commissioner is information linked to the rights and exceptions set out in Parts II andIII of the Act. [Emphasis added.] [59] Section 59(4) raises some concern. It purports to allow the Commissioner to disclose information in her possession to theMinister of Justice and Solicitor General if, in her opinion, the information relates to the commission of an offence for which shebelieves there is evidence. This

section may be deeply troubling to a public body that believes its records are safe in the hands of theCommissioner, particularly those records containing privileged information. The

section appears to vest the Commissioner withinvestigative and reporting powers outside the purposes of

section 2 of FOIPP if the Commissioner believes some other, unrelatedenactment, has been contravened. It is unclear whether the prohibition against disclosure in s 59(3) overrides the s 59(4) power becausethe Commissioner, in exercising her power under s 59(4), would not be doing so in the conduct of an investigation or inquiry or indrafting a report.

Section 59(4) creates the possibility of the Commissioner becoming adversarial in interest to the public body, in limitedcircumstances. [60] Section 59(5) grants the Commissioner permission to disclose information in the course of proceedings identified in section57, namely, certain prosecutions, applications for judicial review and appeals therefrom. It is unclear whether the prohibition againstdisclosure in section 59(3) applies in the context of these identified proceedings. [61]

Section 60 immunizes the Commissioner and her delegates from liability in relation to their work when it is carried out ingood faith: 60 No proceedings lie against the Commissioner, or against a person acting for or under the direction of the Commissioner, foranything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a power, dutyor function under this Part or

Part 5. [Emphasis added.]

Section 60 is found in

Part 4 of the Act which sets out the Commissioner’s powers in conducting investigations and inquiries, includingher power to compel disclosure of records;

Part 4 also specifies the restrictions on disclosure of any information so obtained.

Part 5 isabout the review and complaint process and sets out the Commissioner’s powers to review a public body’s decision refusing to discloserecords. A straightforward reading of

section 60 suggests the Commissioner and her delegates are immune to liability in carrying outthese functions when carried out in good faith. [62]

Section 61 provides: 61(1) The Commissioner may delegate to any person any duty, power or function of the Commissioner under this Act except the powerto delegate.

(2) A delegation under subsection (1) must be in writing and may contain any conditions or restrictions the Commissioner considersappropriate. This

section grants the Commissioner broad discretion to delegate her powers and functions including, for example, the power todetermine in the course of an inquiry if a public body properly claimed that records are subject to solicitor-client privilege.

F. Dispute Resolution [ 63 ]

Part 5 of the Act relates to Reviews and Complaints.

Section 65 gives an applicant the right to ask the Commissioner to review any decision, act or failure to act in relation to a records request.

Section 68 provides for mediation of disputes related to information requests.

Section 69 mandates an inquiry if mediation is unsuccessful; it grants the Commissioner power to “decide all questions of fact and law arising in the course of the inquiry”.

Section 71 places the burden of proof on the public body refusing disclosure: 71(1) If the inquiry relates to a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part of the record . [Emphasis added.] [ 64 ]

Section 72 sets out the Commissioner’s responsibilities on completing an inquiry: 72(1) On completing an inquiry under

section 69, the Commissioner must dispose of the issues by making an order under this section.

(2) If the inquiry relates to a decision to give or to refuse to give access to all or part of a record, the Commissioner may, by order, do the following: (

a) require the head to give the applicant access to all or part of the record, if the Commissioner determines that the head is not authorized or required to refuse access; (

b) either confirm the decision of the head or require the head to reconsider it, if the Commissioner determines that the head is authorized to refuse access; (

c) require the head to refuse access to all or part of the record, if the Commissioner determines that the head is required to refuse access. …

(4) The Commissioner may specify any terms or conditions in an order made under this section. …

(6) A copy of an order made by the Commissioner under this

section may be filed with a clerk of the Court of Queen’s Bench and, after filing, the order is enforceable as a judgment or order of that Court. [Emphasis added.] [ 65 ] This

section grants the Commissioner authority to direct a public body to give an applicant access to all or part of a record to which the public body originally denied access. It requires the Commissioner to issue her decision by way of order. Once filed in the Court of Queen’s Bench, the Commissioner’s order, though not an order of this Court, may be enforced as though it were one. [ 66 ]

Section 73 and 74 provide a partial privative clause in that there is no right of appeal from a Commissioner’s order, only the option to seek judicial review: Stubicar v Alberta (Information & Privacy Commissioner ), 2008 ABCA 357 at para 22 , 440 AR 190. The Commissioner’s order is stayed until the application is dealt with by the Court: 73 An order made by the Commissioner under this Act is final . 74(1) Subject to subsection (2), not later than 50 days after being given a copy of an order of the Commissioner, the head of a public body concerned must comply with the order.

(2) The head of a public body must not take any steps to comply with a Commissioner’s order until the period for bringing an application for judicial review under subsection (3) ends.

(3) An application for judicial review of a Commissioner’s order must be made not later than 45 days after the person making the application is given a copy of the order.

(4) If an application for judicial review is made pursuant to subsection (3), the Commissioner’s order is stayed until the application is dealt with by the Court .

(5) Despite subsection (3), the Court may, on application made either before or after the expiry of the period referred to in subsection (3), extend that period if it considers it appropriate to do so. [Emphasis added.] [ 67 ] Finally, in

Part 6 General Provisions,

section 96 states the Act applies to any record in the custody or under the control of a public body regardless of whether it came into existence before or after the Act came into force. [ 68 ] By way of

summary, applying the foregoing legislative framework to the facts in this case, FOIPP purports to provide a protocol by which: 1. an applicant may request access to records in the possession of a public body; 2. the public body may deny the applicant access to such records on the basis of solicitor-client privilege; 3. an applicant unsatisfied with the public body’s decision may engage the Commissioner in an effort to resolve the dispute over disclosure;

4. the public body has the onus of proving the validity of its claims to an exception, including solicitor-client privilege; 5. the Commissioner is charged with determining the correctness of the public body’s assertion of exceptions to disclosure (whether this includes the power to determine the correctness of an assertion of solicitor-client privilege is one of the questions to be decided in this case); 6. the Commissioner may compel production of records which the public body claims are excepted from disclosure (whether this power to compel production extends to solicitor-client privileged records is the question to be decided in this case); 7. the Commissioner may draw legal as well as factual conclusions in arriving at her decision regarding claimed exceptions; 8. the Commissioner’s ability to disclose documents for which she has compelled production is limited; 9. the Commissioner implements her decision in the form of an order; 10. the Commissioner’s order cannot be appealed but may be subjected to judicial review; and, 11. the Commissioner’s order is stayed pending the outcome of that judicial review.

V. The Commissioner’s Objection to Judicial Review [ 69 ] The Commissioner argues this court should not hear the University’s application for judicial review because the Adjudicator’s authority to order production of documents subject to solicitor-client privilege was not addressed directly in the hearing below; the Adjudicator simply assumed he had the requisite authority and the University refused to abide by it. As a result, there are no reasons explaining the Adjudicator’s assertion of authority.

If this court decides to exercise its discretion to proceed with judicial review nonetheless, the Commissioner argues the Adjudicator’s implied decision regarding his authority should be upheld as reasonable.

If the implied decision is found to be unreasonable, the Commissioner submits the matter should be remitted to the Adjudicator to give him an opportunity to provide reasons. [ 70 ] The Commissioner relies upon Alberta (Information and Privacy Commissioner) v Alberta Teacher’s Association , 2011 SCC 61 at para 22 , [2011] 3 SCR 654 (“ATA”) in arguing that an application for judicial review should not proceed when a new issue that was not before the administrative tribunal is raised on judicial review: The ATA was indeed entitled to seek judicial review.

However, it did not have a right to require the court to consider this [new] issue.

Just as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so. [Emphasis added.] This principle reflects an obvious premise: judicial review of the merits of an administrative tribunal’s decision can only take place if the administrative body considered the issue being brought before the court. [ 71 ] In ATA , the Supreme Court provided several reasons why judicial review should be denied in such circumstances at paras 24-26: There are a number of rationales justifying the general rule.

One fundamental concern is that the legislature has entrusted the determination of the issue to the administrative tribunal ( Legal Oil & Gas Ltd ., at paras. 12-13). As this Court explained in Dunsmuir , “[c]ourts . . . must be sensitive . . . to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures” (para. 27).

Accordingly, courts should respect the legislative choice of the tribunal as the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and to make its views known . This is particularly true where the issue raised for the first time on judicial review relates to the tribunal’s specialized functions or expertise .

When it does, the Court should be especially careful not to overlook the loss of the benefit of the tribunal’s views inherent in allowing the issue to be raised… Moreover, raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court the adequate evidentiary record required to consider the issue… [Emphasis added. Citations omitted.] [ 72 ] The Commissioner asks me to consider the following factors in deciding whether to proceed with judicial review: 1.

Would judicial review unduly interfere with the discharge of administrative functions delegated to the Privacy Commissioner? 2. Can judicial review proceed while respecting the legislative choice of making the tribunal the first instance decision maker in such matters? 3. Is

interpretation of the impugned FOIPP provision within the tribunal’s specialized functions or expertise? 4. Would there be a loss of benefit to the Court in not having the tribunal’s views on its home statute? 5. Would there be unfair prejudice to the opposing parties? 6. Is there an adequate evidentiary record to proceed with judicial review?

The Commissioner argues the above conditions cannot be satisfied and this application for judicial review should be dismissed. [ 73 ] With respect to undue interference with the Commissioner’s administrative functions, this argument suggests that a party seeking judicial review should be denied the opportunity in situations where the court somehow comes to the a priori conclusion that conducting such a review would interfere with the Commissioner’s statutorily granted administrative responsibilities.

I do not view this as a reasonable basis for objecting to the proceedings before me. [ 74 ] Second, the Commissioner argues judicial review may proceed only if the court is prepared to show respect for the legislature’s unambiguous intention to make the Commissioner the “first instance decision maker”. I think “respect” for the Commissioner’s expertise (a.k.a. deference) is a very real consideration. The extent of such deference will be decided in the course of judicial review when considering the appropriate standard of review.

Furthermore, whether or not the legislature conferred upon the Commissioner the “first instance decision maker” power she asserts in the circumstances of this case is the very issue before me. [ 75 ] Third, the Commissioner states judicial review may only proceed if this court first determines the

interpretation of the impugned FOIPP provision is beyond the Commissioner’s specialized function or expertise. As with the second argument, I believe this position confuses the process of judicial review with the conditions precedent to undertaking judicial review in the first place. [ 76 ] Fourth, the Commissioner submits judicial review may proceed only if this court concludes there will be “no loss of benefit to the court of having the tribunal’s views on its home statute”.

The Commissioner expresses her concern that the University has raised the Blood Tribe decision for the first time on judicial review without having first given her or the Adjudicator an opportunity to respond. I can only assume the Commissioner would have responded at the hearing as she has in her brief, by distinguishing the case.

The LSA has argued judicial review inevitably would have followed, at additional expense to the parties and would have been inconsistent with the objective of achieving resolution with maximum efficiency. [ 77 ] Fifth, the Commissioner argues judicial review may only proceed if the court concludes there will be no unfair prejudice to the opposing parties. Arguments before me extended over a total of four days, after which the parties made further written submissions. The Commissioner advanced extensive arguments orally and in writing and asserted my decision will directly influence the

interpretation of similar statutes in Alberta, most notably the Commissioner’s powers to compel production under the Personal Information Protection Act , SA 2003, c P-6.5 (“PIPA”). Given the importance the parties attach to the resolution of the Commissioner’s powers under FOIPP , it would be unfair and prejudicial, not only to the parties but also to public bodies and applicants who rely on FOIPP and similar legislation, not to proceed with this judicial review. [ 78 ] Finally, the Commissioner suggests judicial review cannot proceed in the absence of an adequate evidentiary record.

There appears to be no substantive disagreement among the parties regarding the factual background to this matter. I consider the evidentiary record clear and complete. [ 79 ] Furthermore, despite the Commissioner’s arguments, I do not believe the University raised a new issue for the first time on judicial review. The underlying issue before the Adjudicator related to the Commissioner’s authority under FOIPP to compel production of the Records and the extent to which that authority, in the case of records alleged to be subject to solicitor-client privilege, is constrained.

This is also the issue before this court. [ 80 ] Raising the Supreme Court’s analysis in Blood Tribe for the first time in an application for judicial review does not raise a new issue. Rather, it represents an attempt to bring clarity to an issue that has existed from the outset, by providing this court with additional authority and analysis. [ 81 ] In the result, I reject the Commissioner’s request that the University’s application for judicial review be dismissed.

We are reviewing the Adjudicator’s implied decision that he had authority under FOIPP to issue the Notice to Produce. [ 82 ] The Commissioner further argues that, should this court decide to go ahead with judicial review, the Adjudicator’s decision was reasonable, or if the decision was unreasonable the matter should be remitted to the Adjudicator to give him an opportunity to provide reasons.

The proper standard of review will be discussed below; for now, the thrust of the Commissioner’s argument requires elaboration. [ 83 ] The Commissioner asserts, at para 56 of her Brief, that there is no actual decision to review. Therefore, the court will have to determine if there is an implied decision and, if so, to review that implied decision. ATA also involved the review of an adjudicator’s implied decision.

The Supreme Court noted at para 56 that “the existence of other decisions of a tribunal on the same issue can be of assistance to a reviewing court in determining whether a reasonable basis for the tribunal’s decision exists.” To this end, the Commissioner points to its Solicitor-Client Privilege Adjudication Protocol and a 2011 decision denying access to records in which solicitor-client privilege was claimed under PIPA . In that case the Commissioner concluded the phrase “notwithstanding any privilege of the law of evidence” was sufficient to abrogate solicitor-client privilege.

The Commissioner recognized, however, that compelling production of records alleged to be subject to solicitor-client privilege must be done in accordance with the substantive rule of confidentiality of solicitor-client privileged communications described in Descôteaux . [ 84 ] The Commissioner argues the 2011 decision arose in circumstances analogous to those in the case at bar.

The Commissioner submits that FOIPP “abrogates the evidentiary privilege in exactly the same manner [as PIPA ].” As will be discussed further below, FOIPP and PIPA do not deal with this question in exactly the same way and the differences between the two pieces of legislation render the 2011 decision of limited utility in these proceedings. [ 85 ] The Commissioner also argues relying on ATA that this court should refrain from interfering with the Adjudicator’s implied decision.

The Commissioner suggests this court should either find as reasonable the reasons that could have been given in support of the Adjudicator’s authority, or remit the decision to the Adjudicator to provide reasons. Such a procedure was endorsed in ATA at para 55: Indeed, when a reasonable basis for the decision is apparent to the reviewing court, it will generally be unnecessary to remit the decision to the tribunal. Instead, the decision should simply be upheld as reasonable . On the other hand, a reviewing court should

show restraint before finding that an implied decision on an issue not raised before the tribunal was unreasonable. It will generally beinappropriate to find that there is no reasonable basis for the tribunal’s decision without first giving the tribunal an opportunityto provide one. This, of course, assumes that the Court has thought it appropriate in the particular circumstances to allow the issue to beraised for the first time on judicial review.

Care must be taken not to give parties an opportunity for a second hearing before a tribunal asa result of their failure to raise at the first hearing all of the issues they ought to have raised. [Emphasis added.] [86] As already discussed, the issue raised in this judicial review is not really a new issue at all. Furthermore, after four days ofsubmissions from the parties and after reviewing their extensive written materials, I am even more persuaded the Commissioner seeksresolution of this challenge to her authority under FOIPP.

The Commissioner went to great lengths to distinguish unhelpful aspects ofBlood Tribe, even explaining how its reasoning supports her position. Remitting the matter to the Adjudicator given these extensivearguments, which closely mirror what the absent reasons might have been, would unnecessarily prolong the resolution of the dispute andwould likely end up before this Court for judicial review in any event. VI.

Standard of Review [87] Having determined it is appropriate and necessary to proceed with judicial review of the Adjudicator’s decision to issue theNotice to Produce, I must consider the applicable criteria for determining whether his decision should prevail. In other words, whatstandard of review should apply? [88] The standard of review analysis identifies the limits of the legality of a tribunal’s actions and defines the role of the reviewingcourt: ATA at para 94.

The limits on the court’s powers on judicial review reflect the competing policy objectives of granting decision-making authority to administrative tribunals, while retaining the supervisory jurisdiction of the courts. [89] In Dunsmuir v New Brunswick, 2008 SCC 9 at para 28 & 31, [2008] 1 SCR 190 (“Dunsmuir”), the Supreme Court of Canadanoted: By virtue of the rule of law principles, all exercises of public authority must find their source in law. All decision-making powers havelegal limits, derived from the enabling statute itself, the common or civil law or the Constitution.

Judicial review is the means by whichthe courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.

The function ofjudicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and itsoutcomes. … The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies forcompliance with the constitutional capacities of the government. [Emphasis added.] [90] The Supreme Court explained in Dunsmuir at para 31 that the courts have inherent jurisdiction to engage in judicial review: The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from thejudicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier.

As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, (SCC), [1988] 2 S.C.R. 1048, at p. 1090 “[t]he role of the superior courts in maintaining the rule of law is so important that itis given constitutional protection”.

In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to thedefinition and enforcement of jurisdictional limits. [Emphasis added.] [91] In Dunsmuir, the Supreme Court sought to clarify this difficult area of law by narrowing judicial review to two potentiallyapplicable standards, reasonableness or correctness, depending on the circumstances of the particular case. The outcome of a judicialreview may vary dramatically depending on which standard of review applies.

What is meant by “reasonableness”? [92] In Dunsmuir, the Supreme Court of Canada described reasonableness at para 47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is alsoconcerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of factsand law. [Emphasis added.] [93] The application of the reasonableness standard imports deference since it requires the reviewing court to respect the decision-making process of administrative bodies with regard to the facts and the law. Deference shows respect for governmental creation ofadministrative bodies charged with adjudicative powers: Dunsmuir at para 48.

The court explained at para 49: In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decisionmakers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courtsand administrative bodies within the Canadian constitutional system. [Emphasis added.] [94] The reference in Dunsmuir to “justification, transparency and intelligibility” as hallmarks of reasonableness reflect the realitythat a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and

language often unique to their areas, rendering decisions that can be counter-intuitive to a generalist: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board ), 2011 SCC 62 at para 13 , [2011] 3 SCR 708 (“ Newfoundland and Labrador Nurses’ Union ”). What is meant by “correctness”? [ 95 ] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process or final conclusion; rather, it will undertake its own analysis of the question.

The court will decide whether it agrees with the administrative decision maker; if not, it will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct: Dunsmuir at para 50 . Determining the Applicable Standard of Review [ 96 ] The Supreme Court of Canada in Dunsmuir set out two discrete steps to determine the standard of review in a particular case. First, the court must ascertain whether the jurisprudence has already determined the degree of deference to be accorded the particular question.

If the first inquiry proves unfruitful, the court must analyze the relevant factors to identify the proper standard of review: Dunsmuir at para 62 . To arrive at the proper standard, the court considered the presence of a privative clause, the nature of the legislative regime in question, and the nature of the question of law at issue: Dunsmuir at para 71 . [ 97 ] The following principles emerge from the Supreme Court’s analysis in Dunsmuir and subsequent cases: Indicators suggesting a reasonableness (deferential) standard 1.

The existence of a privative or preclusive clause suggests the reasonableness standard should apply: Dunsmuir at para 51 . A privative clause is one that removes or limits a court’s ability to review a tribunal’s decision. That said, the presence of a privative clause does not mandate the application of the reasonableness standard since the rule of law requires the preservation of the constitutional role of superior courts; judicial review is necessary to ensure the privative clause is read in its appropriate statutory context and administrative bodies do not exceed their jurisdiction: Dunsmuir at para 52 . 2.

Questions of fact, mixed fact and law, discretion or policy will usually invoke a standard of reasonableness: Dunsmuir at para 53 . 3. A reasonableness standard normally applies where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Dunsmuir at para 54 .

The very creation of administrative tribunals is a conferral by the legislature of decision-making authority on those who are presumed to have specialized expertise with the assigned subject matter: ATA at para 1 ; Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 at para 11 , [2012] 2 SCR 283. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to its specific statutory context: Dunsmuir at para 54 .

Indicators suggesting a correctness standard 1. The standard of correctness applies to constitutional questions, questions regarding jurisdictional lines between two or more competing specialized tribunals, and questions of law that are of central importance to the legal system and outside the adjudicator’s specialized expertise: Canada (Canadian Human Rights Commission) v Canada (Attorney General ), 2011 SCC 53 at para 18 , [2011] 3 SCR 471.

Conversely, questions of law that do not rise to this level may be compatible with a reasonableness standard where the other factors so indicate: Dunsmuir at paras 55 and 60 . 2. Administrative bodies also must be correct in their determinations of true questions of jurisdiction or vires , even when applying their home statute: Dunsmuir at para 59 .

Jurisdiction is meant in the narrow sense of whether or not the tribunal had the authority to make the inquiry; true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be ultra vires : Dunsmuir at para 59 . By the term jurisdiction, the Supreme Court intended to encompass the narrow sense of whether or not the tribunal had the authority to make the inquiry. 3.

True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness: ATA at para 39. [ 98 ] There is a common theme running through the cases: tribunals exist for a reason and their existence affirms the value to society of having some decisions made by tribunals rather than courts.

If the courts believe the consequences of a decision are sufficiently important, however, the courts will retain control over the decision. [ 99 ] What is the particular category of question here? Is it a question of true jurisdiction or vires? Is it a question of law of central importance to the legal system as a whole and beyond the Adjudicator’s expertise? If it is either, a correctness standard applies; if neither, a reasonableness standard is warranted. [ 100 ] Not surprisingly, the parties differ in their

interpretation of the question at issue and the applicable standard of review. The University argues for a correctness standard because the abrogation of solicitor-client privilege is a general question of law, is of central importance to the legal system as a whole, and is entirely outside the Adjudicator’s specialized area of expertise as the issue extends beyond mere balancing of privacy interests. The Law Society casts the question in similar terms and also advocates a correctness standard of review. [ 101 ] The Commissioner characterizes the question completely differently, arguing the issue is whether records held by a public body

ought to be disclosed or whether there is a statutory exception that permits the public body to deny disclosure. In other words, the issue is how the Adjudicator made the decision regarding access to disputed documents, not whether the Adjudicator is authorized under FOIPP to make the decision.

The Commissioner argues for a reasonableness standard of review because the Adjudicator was interpreting his home statute and the question was within his specialized area of expertise. [ 102 ] The Commissioner submits this is not a question of “true jurisdiction; the Adjudicator did not explicitly consider whether the statutory grant of power gave him authority to decide the particular matter. The Commissioner suggests true jurisdictional questions are so narrow the Supreme Court has not identified any since Dunsmuir . [ 103 ] I find there are two questions here.

First the “implied question”: Does FOIPP give the Adjudicator authority to issue a Notice to Produce in relation to records allegedly subject to solicitor-client privilege? The question of the Adjudicator’s authority to issue a Notice to Produce is a question of law involving statutory

interpretation of the Adjudicator’s home statute, a presumed area of expertise normally subject to a reasonableness standard of review. The Supreme Court warned in ATA at para 34, however, that “[i]n one sense, anything a tribunal does that involves the

interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review”. The court cautions that “unless the situation is exceptional”, when considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed the appropriate standard of review is reasonableness. The burden rests with the party seeking to invoke the correctness standard to demonstrate why the courts should not review a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness: ATA at para 39. [ 104 ] The Supreme Court also noted at paras 52-53 in ATA that the standard of reasonableness should apply to an implied decision: Obviously, where the tribunal’s decision is implicit, the reviewing court cannot refer to the tribunal’s process of articulating reasons , nor to justification, transparency and intelligibility within the tribunal’s decision-making process. The reviewing court cannot give respectful attention to the reasons offered because there are no reasons.

However, the direction that a reviewing court should give respectful attention to the reasons “which could be offered in support of a decision” is apposite when the decision concerns an issue that was not raised before the decision make r. In such circumstances, it may well be that the administrative decision maker did not provide reasons because the issue was not raised and it was not viewed as contentious.

If there exists a reasonable basis upon which the decision maker could have decided as it did, the court must not interfere . [Emphasis added.] [ 105 ] The question to be answered here is whether the University and the LSA have established that, in light of the partial privative clause, the FOIPP regime, and the nature of the question of law involved, i.e. compelling production of documents allegedly subject to solicitor-client privilege, and in spite of the absence of specific reasons from the tribunal, a standard of correctness should apply. [ 106 ] I refer to the second question as the “procedure question”: Was recourse to the Notice to Produce necessary to verify the claim for solicitor-client privilege or were there other means to ascertain the validity of the claimed solicitor-client privilege?

It is arguable this decision is subject to a standard of reasonableness: it is a question of mixed fact and law, i.e. how the law applies to the particular circumstances, and it is within the Adjudicator’s expertise, in that he makes decisions related to documentary production every day. Yet the question also must consider whether the Adjudicator has respected and followed the guidelines in Descôteaux .

It is important to note this “procedure question” is about production to the Commissioner alone, not more broadly, even though it is imbued with the importance of solicitor-client privilege generally. [ 107 ] Following the process outlined in Dunsmuir, I will first consider whether “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded” each of these questions: Dunsmuir at para 62 .

Lessons from the case law [ 108 ] Most closely on point in relation to the implied question is the decision of the Newfoundland Court of Appeal in Newfoundland and Labrador (Attorney General) v Newfoundland and Labrador (Information and Privacy Commissioner ), 2011 NLCA 69 , 343 DLR (4th) 57 (“ NFLD Privacy Commissioner ”). The NFLD Commissioner sought production of records from the Department of Justice (“DOJ”) for the purpose of verifying a claim of solicitor-client privilege. The Newfoundland Supreme Court Trial Division found the DOJ was not obliged to produce the records for review.

Section 52(3) of the Access to Information and Protection of Privacy Act , SNL 2002, c A-1.1 (“ATIPPA”) then under consideration was substantively similar to section 56(3) of FOIPP . The Newfoundland Court of Appeal accepted the parties’ submissions that the standard of correctness applied at para 13: The parties have agreed that the standard of review applicable to this appeal is one of correctness and I concur with that position. The sole issue here is a matter of the correct

interpretation of the statutory language where that language could potentially infringe a fundamental right, namely solicitor-client privilege . Thus a question of law is clearly engaged. [Emphasis added.] [ 109 ] The Newfoundland Court of Appeal had no apparent difficulty in selecting a correctness standard even though the decision involved the

interpretation of the NFLD Commissioner’s authority to compel production of records pursuant to her home statute. The choice of correctness seems to have been based on two facts. First, the question was one of statutory

interpretation, clearly a question of law. Second, the question engaged the fundamental right of solicitor-client privilege. There was no discussion of why the validity of a claim of solicitor-client privilege was beyond the NFLD Commissioner’s expertise or why a reasonableness standard was inappropriate.

Given the similarities between ATIPPA and FOIPP this decision is persuasive, although not binding, in suggesting a correctness standard for the implied question. [ 110 ] Central Coast School District No 49 v British Columbia (Information and Privacy Commissioner ), 2012 BCSC 427 , [2012] 9 WWR 153 (“ Central Coast ”) also provides guidance in relation to the appropriate standard of review for the implied question.

The school board voluntarily provided copies of documents over which it claimed solicitor-client privilege to the Acting Information and Privacy Commissioner (the “Acting Commissioner”) under the British Columbia Freedom of Information and Protection of Privacy Act , RSBC 1996, c 165 (“BC FOIPP”) to review the privilege claim. The Acting Commissioner concluded the privilege was validly claimed

in relation to some documents but not in relation to others and ordered disclosure to the applicant of those documents.

The school boardsought judicial review of the decision requiring them to disclose some documents. [111] The parties submitted a correctness standard of review should apply and Butler J agreed, even though the decision related to theinterpretation of the Acting Commissioner’s home statute at paras 34-35: In the present case, the Acting Commissioner’s decision to consider whether the Board could refuse to produce the documents inquestion on the basis of solicitor-client privilege necessarily involves an implied decision: that the Commissioner has thejurisdiction to adjudicate questions of solicitor-client privilege.

This is an implied decision regarding the

interpretation of theCommissioner’s home statute. In other words, it is a decision to which some deference might be expected. Nevertheless, both partiessubmit, and I agree, that the applicable standard of review for this issue is correctness. …I need not decide if this is one of the exceptional issues that goes to “jurisdiction or vires”, as Rothstein J would have it, or whether itis an issue that upon a full consideration of the legislative intent, must be determined correctly, as Cromwell J would have it. It is, in myview, one or the other.

Solicitor-client privilege is a fundamental substantive right: Blood Tribe at para. 10. Whether thejurisdiction to determine that privilege has been granted to the Commissioner, or left to the courts, is a critical issue that thelegislature must have intended be decided correctly.

It is an issue that raises squarely the jurisdiction of the Commissioner.Accordingly, I will consider the issue on a standard of correctness and need not defer to the implied decision of the ActingCommissioner. [Emphasis added.] [112] The case law clearly states the question of whether jurisdiction has been granted to adjudicate claims of solicitor-client privilegemust be decided correctly: a standard of correctness applies to the implied question of jurisdiction. [113] What of the procedure question? Is deference owed to the Adjudicator’s decision to demand production of the records for hisreview?

Central Coast considered a related question: is deference owed to the Adjudicator’s decision regarding whether solicitor-clientprivilege was properly claimed? Butler J concluded the standard of correctness must apply to questions of solicitor-client privilege atparas 87-88: …solicitor-client privilege is a substantive legal right, the importance of which goes far beyond s. 14 of the Act.

In Legal ServicesSociety, at para. 35, the court found that the constitutional value attached to solicitor-client privilege was such that the Commissionershould not be permitted to reach a conclusion regarding the privilege that is “reasonable, but incorrect”: ... If, as Lavallee mandates, [solicitor-client privilege] is to be maintained as close as possible to “absolute”, a standard of correctnessmust be applied to the Commissioner’s determination of whether the disclosure of particular information carries the potential tobreach the privilege of clients...

The nature of the question weighs heavily towards attracting a correctness standard. Solicitor-client privilege is a substantive legal rightwith constitutional value. It is a legal right which is to be maintained as close as possible to absolute. In order to do that, a correctnessstandard must be applied to any question as to whether solicitor-client privilege has been properly claimed. [Emphasis added.] [114] While the discussion in Central Coast provides some guidance, it does not directly answer the question of the standard ofreview to be applied to the procedure question before me.

Analysis of the Relevant Factors [115] FOIPP contains a partial privative clause suggesting a measure of deference is owed to the Adjudicator. Furthermore, the natureof the legislative regime also supports a deferential standard. The purpose of the Act is to make public bodies more accountable to thepublic and to protect personal privacy by giving the public a right of access to records, specifying limited exceptions to the rights ofaccess and providing for an independent review of decisions made under the Act. The Act grants oversight of the rights of access andexceptions thereto to the Commissioner.

The Ontario Court of Appeal commented in Ontario (Minister of Health and Long-Term Care) vOntario (Assistant Information and Privacy Commissioner) (2004), (ON CA), 73 OR (3d) 321 at paras 28 & 31(CA) (“Ontario Health”) on the Ontario Commissioner’s similar role under the Ontario Act: …One of the principles the Act is expressly founded on is that disclosure decisions should be reviewed independently ofgovernment. It creates the office of the Commissioner to deliver on that principle and gives to the Commissioner broad and uniquepowers of inquiry to review those decisions.

It constitutes the Commissioner as a specialized decision maker. In my view, thisimplies that the legislature sees the Commissioner as the appropriate reviewer of disclosure decisions by government.

The verystructuring of the office and the specialized tools given to it to discharge one of the Act's explicit objectives suggests that the courtsshould exercise deference in relation to the Commissioner's decisions. … In every review of disclosure decisions by government, the Commissioner is required by the Act to strike the delicate balancerequired between its two fundamental purposes, providing the public with the right of access to information held by government andprotecting of the privacy of individuals with respect to that information.

This is not a task for which the courts can claim the samefamiliarity or specialized experience. [Emphasis added.] [116] Yet, in my view, the nature of the question at issu

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