Her Majesty in Right of Newfoundland v. Labrador,, 2022 NLSC 59

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador (Justice and Public Safety) v.

Newfoundland and Labrador (Information and Privacy Commissioner ) , 2022 NLSC 59 Date : March 31, 2022 Docket : 201901G5743 Between: Her Majesty in Right of Newfoundland and Labrador, as represented by the Minister of Justice and Public Safety Applicant And: Michael Harvey, in his capacity as the Information and Privacy Commissioner of Newfoundland and Labrador Respondent And: Law Society of Newfoundland and Labrador Intervenor Before: Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 25, 2022 Appearances: David G.

Rodgers Appearing on behalf of the Applicant Andrew A. Fitzgerald Appearing on behalf of the Respondent Aimee N. Rowe Appearing on behalf of the Intervenor

Authorities Cited: CASES CONSIDERED: Newfoundland & Labrador (Attorney General) v. Newfoundland & Labrador (Information & Privacy Commissioner) , 2011 NLCA 69 ; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 , aff’g University of Calgary v. R. (J.), 2015 ABCA 118 , rev’g 2013 ABQB 652 ; Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 ; Blood Tribe Department of Health v. Canada (Privacy Commissioner ), 2008 SCC 44 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c.

A-1.2 ; Access to Information and Protection of Privacy Act , S.N.L. 2002, c. A-1.1 , as rep. by Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 ; Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 ;

Interpretation Act , R.S.N.L. 1990, c. I-19 ; Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 165 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D OTHER: Newfoundland and Labrador, The Freedom of Information Review Committee, Striking the Balance: The Right to Know & the Right to Privacy , vol. 1 (St. John’s: Queen’s Printer, July 2001) (Chair: Joan Dawe); Bill 29,

An Act to Amend the Access to Information and Protection of Privacy Act , 1st Sess., 47th Leg., Newfoundland and Labrador, 2012; Newfoundland and Labrador, Report of the 2014 Statutory Review of the Access to Information and Protection of Privacy Act , vol. II (St. John’s: Queen’s Printer, March 2015) (Chair: Clyde K. Wells); Bill 1,

An Act to Provide the Public with Access to Information and Protection of Privacy , 4th Sess., 47th Leg., Newfoundland and Labrador, 2015; Newfoundland and Labrador, Access to Information and Protection of Privacy Act, 2015 , Statutory Review 2020 , vol. 1 (St. John’s: Queen’s Printer, June 2021) (Chair: David B.

Orsborn) REASONS FOR JUDGMENT MacDonald J. : INTRODUCTION [ 1 ] This decision is about whether the Newfoundland and Labrador Information and Privacy Commissioner can compel the Department of Justice and Public Safety to provide him with records over which the Department asserts solicitor-client privilege, or if it fails to do so, recommend disclosure of such records to a member of the public who requests such disclosure. [ 2 ] The Commissioner acts under the authority of the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 . (“ ATIPPA 2015 ”).

The purpose of ATIPPA 2015 includes the public right to access to public records, to both ensure citizens have the information required to participate meaningfully in the democratic process and to increase transparency in public bodies so that they remain accountable to the public they serve (section 3(1)(

a) and (b)). [ 3 ] ATIPPA 2015 provides for an oversite agency (the Commissioner’s office) that conducts independent reviews of decisions made by public bodies (section 3(2)(f)(iii)). [ 4 ] ATIPPA 2015 gives the Commissioner broad power to facilitate disclosure of public records to members of the public who request access. However, under section 30(1)(a), a public body may refuse to disclose public records subject to solicitor-client privilege. [ 5 ] The Commissioner may require the public body to disclose such records to him for his examination “notwithstanding … a privilege under the law of evidence”.

This provision allows him to determine whether the public body properly made the claim of privilege. (section 97(1)(d)). [ 6 ] The Newfoundland and Labrador Court of Appeal in Newfoundland & Labrador (Attorney General) v. Newfoundland & Labrador (Information & Privacy Commissioner) , 2011 NLCA 69 , considering a previous version of the Act [1] , concluded that the wording “a privilege under the law of evidence” includes solicitor-client privilege. I will discuss this case in more detail later. [ 7 ] The

interpretation of the meaning of these words is now again before the Court. In 2019, the Commissioner conducted an investigation on behalf of a member of the public who requested access (“requester”) to government records. The Department responded to this request on April 30, 2019. It refused to disclose parts of records covered by solicitor-client privilege and provided only redacted records. [ 8 ] On May 16, 2019, the requester made a complaint to the Commissioner challenging the Department’s decision to provide the redacted records. On the next day, the Commissioner wrote the Department asking that it respond, “justifying your reliance on any exceptions you have claimed” [2] .

[ 9 ] On June 3, 2019, the Department responded to the Commissioner’s request, and said, “a significant portion of the records were withheld as legal advice” [3] .

It said the records were communications: (1) between the solicitor, acting in their professional capacity, and the client; (2) were seeking or giving of legal advice; and (3) that they intended to be confidential. [ 10 ] On June 11, 2019, the Commissioner told the Department that, rather than providing him the records, it could instead provide him with an affidavit providing sufficient information about the records to allow him to assess whether or not solicitor-client privilege applies. [ 11 ] The Department refused to do either. The Commissioner then, under sections 47(

a) and 48(1)(

a) of ATIPPA 2015 , issued report A-2019-19 dated August 21, 2019. He recommended that the Department disclose the unredacted records to the requester. [ 12 ] The Department then applied to this Court under section 50(2) of ATIPPA 2015 for a declaration that it was not required to comply with the direction. The Law Society of Newfoundland and Labrador intervened. [ 13 ] Both the Department and the Law Society argue that the 2016 decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v.

University of Calgary , 2016 SCC 53 , decided that the Commissioner’s powers to require disclosure do not extend to disclosure of records over which the Department asserts solicitor-client privilege. [ 14 ] In University of Calgary, the Supreme Court of Canada considered section 56(3) of the Alberta Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25, s. 56(3) (“ FOIPPA )”.

It says, “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 … required” for its investigation (emphasis added). [ 15 ] The Supreme Court of Canada found that this provision does not require the University of Calgary to produce records over which it asserts solicitor-client privilege. [ 16 ] The Department and the Law Society argue that the Supreme Court of Canada effectively overruled the 2011 Court of Appeal decision because the statutory language in Alberta – “ despite … any privilege of the law of evidence ” , is very similar to the Newfoundland and Labrador statutory language in Section 97(1)(d), “notwithstanding … a privilege under the law of evidence”. [ 17 ] The issues for me to decide are: Issue 1: Can the Commissioner compel production of records over which the Department asserts solicitor-client privilege; and Issue 2: If the Commissioner can compel production, is he entitled to receive the records in this instance? [ 18 ] All parties agree that the standard of review applicable to this application is one of correctness. [4] I agree.

I will now turn to the first issue. Issue 1: Can the Commissioner compel production of records over which the Department asserts solicitor-client privilege? [ 19 ] I find that the Commissioner does not have authority to compel production of records over which the Department asserts solicitor-client privilege. I therefore declare that the Department need not comply with the recommendation in paragraph 44(

b) of Report A-2019-019, dated August 21, 2019. I will now explain why I made this decision. [ 20 ] As I discussed earlier in this decision, the Court of Appeal in Attorney General interpreted the meaning of these words now contained in section 97(1)(d). Harrington J.A. concluded that the Supreme Court of Canada in Bell ExpressVu Ltd. Partnership v. Rex , 2002 SCC 42 , found that, “Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation ….” and referred to Driedger’s “definitive formulation”, which is, “Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (paragraph 25). [ 21 ] Harrington J.A. discussed

section 16 of the

Interpretation Act , R.S.N.L. 1990, c. I-19 , and then observed, “The approach mandated by the modern approach and

section 16 … requires courts to go beyond the ‘plain meaning of the words’ to give [ ATIPPA 2002 ] a contextual, purposive

interpretation.” (paragraph 28). [ 22 ] Harrington J.A., referring to Blood Tribe Department of Health v. Canada (Privacy Commissioner ) , 2008 SCC 44 , said, “I do not take this reasoning to mean that a court should not apply the modern approach to statutory

interpretation as a preliminary step when attempting to determine what a particular express provision means. The admonition by the Supreme Court appears to hold that a court should avoid finding an implicit power to abrogate solicitor-client privilege based on a purposive

interpretation of legislation …” (emphasis added) (paragraph 34). [ 23 ] He said that Blood Tribe stood for the principle that a “strict or restrictive

interpretation can only be resorted to, however, where multiple

interpretations are possible following a contextual, purposive analysis” (paragraph 30). [ 24 ] Harrington J.A. concluded that, “Even where a Court applies a restrictive

interpretation and finds that a provision authorizes encroachment of solicitor-client confidentiality, the specific exercise of that authority must be ‘absolutely necessary to achieve the ends sought by the enabling legislation’” (paragraph 31). [ 25 ] The Court of Appeal then found that: (

a) the words “notwithstanding … a privilege under the law of evidence” are sufficiently clear to abrogate solicitor-client privilege “as this is a privilege recognized under the laws of evidence” (paragraph 45); and (b) “Solicitor-client privilege is unquestionably a rule regulating the admissibility of what is offered as proof into the record of a

legal proceeding” (paragraph 45). [ 26 ] Harrington J.A. then said that this “does not end the inquiry. We must go beyond the words of the enactment to determine if the context and purpose of subsection 52(3), determined under the proper approach to statutory

interpretation, lead us to a different result.” (paragraph 46). [ 27 ] He concluded by saying, “While [subsection 52(3)] does not employ the words ‘solicitor-client privilege’, I am satisfied that the words actually employed are not ambiguous and are sufficiently explicit to include that privilege.” (paragraph 75). [ 28 ] The Court of Appeal reviewed a number of sources including a report entitled “ Striking the Balance: The Right to Know & the Right to Privacy” [5] and transcripts of the House of Assembly at the second reading of the legislation.

The court concluded the purpose of the legislation is to create an alternate to courts. This purpose is defeated if the Commissioner cannot review denials of access to requested records when solicitor-client privilege is claimed but must ask a court to order production. [ 29 ] It concluded then that the context and purpose of the enactment, determined under the modern approach, did not lead it to a different result. [ 30 ] Therefore, I must decide whether the express words are “sufficiently clear, explicit and unequivocal” to abrogate solicitor client-privilege. I then must apply the modern approach to statutory

interpretation and decide if it leads me to a different result. [ 31 ] I believe this approach is consistent with the Supreme Court of Canada’s direction in University of Calgary .

I will discuss this later in this decision. [ 32 ] After the Court of Appeal’s decision, the legislature revoked the Commissioner’s power to request disclosure of privileged solicitor-client documents. [6] However, in 2014, the government received the “ Report of the 2014 Statutory Review ” [7] , the so-called “Wells Report”. [ 33 ] At page 121, the Committee recommended that the legislature authorize the Commissioner, as part of his investigation into a complaint, to review all records including those where solicitor-client privilege is claimed . Government accepted this Report.

In 2015, it introduced enabling legislation. [8] The accompanying explanatory note provided “the Bill would … give the commissioner the power to review … solicitor-client privileged records .…” [9] [ 34 ] The legislature reinstated the wording that the Court of Appeal considered in 2011. It did not specifically refer to solicitor- client privilege records in section 97(1)(d).

This was perhaps a reasonable approach since the Court of Appeal decided that this language included disclosure of solicitor-client privileged records. [ 35 ] As the 2015 amendments reinstated the language interpreted by the Court of Appeal, the accepted

interpretation of the provision would not have changed. This case arose because the

interpretation of a similar provision progressed through the Alberta courts and ended at the Supreme Court of Canada. [ 36 ] The Alberta Information and Privacy Commissioner sought disclosure from the University of Calgary of documents over which it claimed solicitor-client privilege. Its Provost and Vice-President (Academic) wrote the Commissioner stating, “the communication between the University of Calgary and its legal advisors is the subject of solicitor-client privilege as recognized in the common law for centuries …” ( University of Calgary v. R. (J.) , 2015 ABCA 118 at para. 8 ). [ 37 ] The Commissioner demanded production under

section 56 of the Alberta legislation, FOIPPA, which provided, “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 …” (emphasis in original) (paragraph 9). [ 38 ] The trial judge in University of Calgary v. R. (J.) , 2013 ABQB 652 , allowed the Commissioner’s application and applied, among other cases, the Newfoundland Court of Appeal 2011 decision of Attorney General . On appeal, the Alberta Court of Appeal reversed the decision. It found that the trial judge incorrectly attempted to reconcile the modern approach to statutory

interpretation with the rule of strict construction called for in Blood Tribe. It rejected the Commissioner’s application. [ 39 ] The Alberta Court of Appeal found that “ Blood Tribe ’s direction is categorical: because of the central importance of solicitor- client privilege to our legal system and to the preservation of a relationship which is integral to the administration of justice, where statutory language might be interpreted as authorizing an infringement of solicitor-client privilege, the rule of strict construction — and only the rule of strict construction — is to be applied ab initio …” (paragraph 40). [ 40 ] The Alberta Court of Appeal then found that: (

a) to abrogate solicitor-client privilege, statutory language must be clear, unequivocal and unambiguous; (

b) statutory language cannot be taken as authorizing the infringement of solicitor-client privilege by inference or implication; and (

c) general (or “open-textured”) language granting power to compel production of records is insufficiently specific to authorize a demand for production of records over which a public body asserts solicitor-client privilege. (Paragraph 42) [ 41 ] On appeal, the Supreme Court of Canada in University of Calgary upheld the Alberta Court of Appeal, but for different

reasons. It emphasized the importance of access to information in a democratic society and the fundamental importance of the solicitor- client privilege to the functioning of our legal system and as a cornerstone of access to justice (paragraph 34). [ 42 ] The Supreme Court of Canada found that: (

a) The Alberta Court of Appeal’s conclusions that the modern approach to statutory

interpretation had no role in this decision was incorrect. It said that Blood Tribe reflects “ what is essentially the modern approach to statutory

interpretation when dealing with solicitor-client privilege, insofar as it recognizes legislative respect for fundamental values ”; ( emphasis added) (paragraph 29) (

b) Solicitor-client privilege belongs to the client and not the lawyer. From the client’s perspective, disclosure to an administrative officer, like the Commissioner, constitutes an infringement of the privilege. It observed that the Commissioner is not an impartial adjudicator like a court; (paragraph 36) (

c) Solicitor-client privilege evolved from a rule of evidence to a rule of substance. It also observed that some even suggest that it has quasi-constitutional status ; (paragraph 38) (

d) The present case engages solicitor-client privilege in its substantive, rather than evidentiary, context ; (paragraph 42) (

e) The Supreme Court of Canada has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible.

It should not be interfered with “unless absolutely necessary”; (paragraph 42) (f) “To give effect to solicitor-client privilege as a fundamental policy of the law, legislative language purporting to abrogate it, set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent to do so” ; (p aragraph 28) (g) “[I]t is only where legislative language evinces a clear intent to abrogate solicitor-client privilege in respect of specific information that a court may find that the statutory provision in question actually does so.

Such an intent cannot simply be inferred from the nature of the statutory scheme or its legislative history , although these might provide supporting context where the language of the provision is already sufficiently clear .

If the provision is not clear, however, it must not be found to be intended to strip solicitor-client privilege from communications or documents that this privilege would normally protect”; (emphasis added) ( p aragraph 28) and (h) “Given that this Court has consistently and repeatedly described solicitor-client privilege as a substantive rule rather than merely an evidentiary rule, I am of the view that the expression ‘privilege of the law of evidence’ does not adequately identify the broader substantive interests protected by solicitor-client privilege.

This expression is therefore not sufficiently clear, explicit and unequivocal to evince legislative intent to set aside solicitor-client privilege ”. (emphasis added) (paragraph 44) [ 43 ] The Commissioner argues that University of Calgary has little precedential value for two reasons. The first is he says in Newfoundland and Labrador, the legislative intent is clear and unequivocal. He says the legislature intended to require public body to disclose solicitor-client privilege records to the Commissioner for his review. He says this because: (

a) The Wells Report expressly dealt with the issue. It said, “The Committee concludes the Commissioner must be permitted to review all records, including those where the solicitor-client privilege is being claimed , as part of an investigation into a complaint” (emphasis added) [10] ; and (

b) The explanatory note attached to Bill 1 implementing these recommendations says, “The Bill would … give the commissioner the power to review cabinet records, solicitor-client privileged records … under the control of a public body” (emphasis added). Minister Kent made similar statements when he introduced the Bill in the House of Assembly. [11] [ 44 ] The second is that ATIPPA 2015 has two provisions not in the Alberta legislation. These are: (a) section 97(5)(

a) that says, the Department “may require the commissioner to examine the original record at a site determined by the head where the head of the public body has a reasonable basis for concern about the security of a record that is subject to solicitor and client privilege …” ; (emphasis added) and (b) section 100(2) that says, “The solicitor and client privilege or litigation privilege of the records shall not be affected by production to the commissioner. ” (emphasis added). [ 45 ] The Commissioner says these two provisions read together allow me to distinguish University of Calgary , in part because the Supreme Court of Canada noted the absence of a similar provision to section 100(2). (paragraph 58). [ 46 ] Cromwell J., while dissenting on this issue in University of Calgary, made a similar observation that section 44(2.1) in the British Columbia Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 165 , a similar provision to section 100(2) of ATIPPA 2015 , meant that the British Columbia legislature “assumed that phrase [“any privilege under the law of evidence”] to refer to records subject to solicitor-client privilege” (paragraph 118). [ 47 ] The Law Society and the Department both argue that sections 97(5)((

a) and 100(2) of ATIPPA 2015 have other possible

interpretations. Both say that they may apply when a public body voluntarily discloses solicitor-client records for the Commissioner’s inspection. [ 48 ] I reject the Commissioner’s argument that I can distinguish University of Calgary . The Commissioner’s argument on his first reason fails because the Supreme Court of Canada ruled I could not infer an intent to abrogate solicitor-client privilege from the nature of the statutory scheme or legislative history unless the language is already sufficiently clear. [ 49 ] The Commissioner’s argument on his second reason also fails. I agree that there are two possible

interpretations for sections

97(5) and 100(2) of ATIPPA 2015 . The Supreme Court of Canada directed that when I find there are two

interpretations, one that requires an abrogation of solicitor-client privilege, and one that does not, I must favour the latter. [ 50 ] Furthermore, Côté J. writing for the majority in University of Calgary referred to section 27(1) of FOIPPA .

Newfoundland and Labrador has language similar in section 30(1) of ATIPPA 2015 . ( FOIPPA : “a public body may refuse to disclose … information that is subject to any type of legal privilege, including solicitor-client privilege ” (emphasis added); ATIPPA 2015: “The head of a public body may refuse to disclose … information that is subject to solicitor and client privilege or litigation privilege” (emphasis added). [ 51 ] She observes, “Read together, ss. 27(1) and 56(3) provide that a public body can refuse to disclose documents subject to any “legal privilege”.

The Commissioner can obtain production of some privileged documents for review, namely those over which a “privilege of the law of evidence” is asserted, and can adjudicate claims of privilege in those cases” (paragraph 56). [ 52 ] She continues, “Solicitor-client privilege is clearly a “legal privilege” under s. 27(1) , but not clearly a “privilege of the law of evidence” under s. 56(3) …. Therefore, the head of a public body may refuse to disclose such information pursuant to s. 27(1) , and the Commissioner cannot compel its disclosure for review under s. 56(3) .

This simply means that the Commissioner will not be able to review documents over which solicitor-client privilege is claimed. This result is consistent with the nature of solicitor-client privilege as a highly protected privilege .” (emphasis added) (paragraph 57). [ 53 ] I find that these comments apply in this case to the

interpretation of section 97(1)(

d) of ATIPPA 2015 . [ 54 ] The Commissioner also argued that the Honourable David B. Orsborn observed in his 2020 review of ATIPPA 2015 , that the Commissioner only has power to examine a solicitor-client record. He cannot compel production to a requester. He can only recommend disclosure to the requester. If a public body does not accept the recommendation, it can apply to this Court to adjudicate the privilege claim. [12] [ 55 ] This distinction makes no difference to my analysis. The disclosure to the Commissioner is the breach of privilege.

It does not matter if the Commissioner decides to recommend disclosure. It does not matter that section 100(2) of ATIPPA 2015 preserves the privilege with respect to the rest of the world.

Privilege is lost to the Commissioner who, as the Supreme Court of Canada said, may have an adverse interest to the Department ( University of Calgary at para. 35). [ 56 ] The Commissioner also argued that in Attorney General , Harrington J.A. in a passage he expressly identified as obiter dicta , suggests a practical approach to the exercise of the Commissioner’s statutory power, which he, and now the Commissioner, say would make the routine disclosure of solicitor-client records unlikely. Indeed, the Hon.

David Orsborn referred to this obiter in his report (pages 120-122). [ 57 ] Harrington J.A. said, “If the Commissioner were to receive a letter (or possibly an affidavit) from a senior Justice official indicating that all materials were provided as per an access to information request save for documents containing legal advice (identified by subject matter, date and solicitor) could not the Commissioner reasonably rely on that to conclude that the documents in question are in fact privileged?” (paragraph 81). [ 58 ] He continued by saying, “Such an arrangement, it seems to me, should operate to deal with the vast majority of cases.

And, in the few where the Commissioner felt compelled to pursue matters further, the discussion would be focused in a way that should assist reasoned consideration.” (paragraph 81). [ 59 ] The Commissioner asked the Department to provide information similar to that suggested by Harrington J. This practical approach is an internal process similar to the process described in paragraph 4 of the University of Calgary and it is not germane to this issue.

Côté J. in University of Calgary observed, “the Protocol is not law, and was not enacted by the legislature” (paragraph 69). [ 60 ] The Commissioner argues he has the legal authority to compel production of all solicitor-client privileged records. He asks me to say that he does. Whether he decides to adopt a different less intrusive approach is not the issue before me. [ 61 ] I would also have concerns about the information the Commissioner would require in a letter or affidavit. What is “an appropriate … description of each document”?

This could be problematic if disclosure of the description in itself abrogates solicitor- client privilege. [ 62 ] Although I have concluded that this practical approach is not relevant to this issue, it is relevant in consideration of Issue 2, which I will discuss later in this decision. [ 63 ] I therefore find: (

a) Both the Newfoundland and Labrador and Alberta legislation deals with access to information and disclosure documents by public bodies; (

b) The language in section 56(3) of the Alberta legislation and section 97(1)(

d) of the Newfoundland legislation is substantially similar; (

c) The Supreme Court of Canada determined that solicitor-client privilege is more than a “law of evidence” and is a “law of substance”. It determined that the language in the Alberta legislation is not sufficiently clear, explicit and unequivocal to show legislative intent to set aside solicitor-client privilege; and

(

d) Therefore, the legislative language in section 97(1)(

d) of ATIPPA 2015 is not sufficiently clear, explicit and unequivocal to set aside solicitor-client privilege . [ 64 ] The Supreme Court of Canada found that if a legislature attempts to abrogate solicitor-client privilege, it must do so in clear, explicit and unequivocal statutory language. While the Newfoundland and Labrador legislature intended to abrogate solicitor-client privilege, I must apply the modern approach to statutory

interpretation in the context of, as Côté, J said, solicitor-client privilege acquiring “constitutional dimensions” (paragraph 20). Doing so, I find that the statutory language it employed was not sufficiently clear, explicit and unequivocal to abrogate a fundamental core value to our legal system and democratic way of life. [ 65 ] I therefore find that the Commissioner has no authority to compel disclosure of solicitor-client records. This result, as Côté J. said, “is consistent with the nature of solicitor-client privilege as a highly protected privilege” (paragraph 57). [ 66 ] Legislative history, reports of law reform commissions,

preambles to legislative bills and statements in the House of Assembly are all useful aids in modern statutory

interpretation. However, the Supreme Court of Canada in University of Calgary emphasized that Blood Tribe reflects the modern approach to statutory

interpretation when dealing with solicitor-client privilege “ insofar as it recognizes legislative respect for fundamental values” (emphasis added) (paragraph 29). [ 67 ] Solicitor-client privilege is not merely a privilege under the law of evidence, as was the Court of Appeal’s

interpretation when the legislature enacted ATIPPA 2015. It is a fundamental core value to our legal system and democratic way of life. The Supreme Court of Canada in University of Calgary emphasized that this privilege should only be set aside in the “most unusual circumstances” (paragraph 34). [ 68 ] Furthermore, it is not apparent how ATIPPA 2015 streamlines resolution of solicitor-client privilege issues.

The Department may come to this Court on an expedited basis to resolve claims of solicitor-client privilege, even after the Commissioner has ordered disclosure of records. [13] [ 69 ] Thus, if the Department maintains that its records are subject to solicitor-client privilege, eliminating the Commissioner’s review of solicitor-client records might actually expedite resolution of disputes while preserving the privilege. [ 70 ] I also would have considered the comments of Côté J, which I referred to earlier in this decision, when she describes how similar Alberta provision fit into the legislative framework.

Many of these comments apply to ATIPPA 2015 . [ 71 ] Therefore, I find that this case is not “a most unusual circumstance” where I would abrogate solicitor-client privilege. Issue 2: If the Commissioner is entitled to compel production, is he entitled to receive the records in this instance? [ 72 ] Given my decision on the first issue, I need not answer this question. However, as the Supreme Court of Canada in University of Calgary did so, I will also. [ 73 ] Had I found that the language of 97(1)(

d) of ATIPPA 2015 allows the Commissioner to compel production or disclosure of s olicitor-client privileged records, I would not order production or disclosure in this case. [ 74 ] Côté J. dealt with this issue in University of Calgary when she said, “At the time of the Commissioner’s request for disclosure, the prevailing authorities in Alberta in civil litigation allowed a party to bundle and identify solicitor-client privileged documents by document numbers, as the University had done ….

No evidence or argument was made to suggest that solicitor-client privilege had been falsely claimed by the University …” (emphasis added) (paragraph 70). [ 75 ] She concluded that as in Blood Tribe, courts would decline to review solicitor-client documents to decide if a party properly asserts the privilege unless there is evidence or argument to show necessity of doing so to decide the issue fairly.

Cromwell J., dissenting on privilege but concurring in the result, agreed (paragraph 121). [ 76 ] Cromwell J. found it was an error for the Commissioner to impose a more onerous standard on the University to assert privilege than that applicable in civil litigation. [14] Furthermore, he states, “The evidence — in particular the letter by the University’s external legal counsel — clearly asserts that the documents are communications between solicitor (the University’s external legal counsel) and client (the University’s General Counsel, on behalf of the University); which entails the seeking or giving of legal advice; and which is intended to be confidential by the parties.” (paragraph 127) Abella J., while dissenting, agreed that the University of Calgary provided sufficient justification for solicitor-client privilege. [ 77 ] The Department provided a list of documents referred to by page number. [15] It later provided similar assurances to those referred to by Cromwell J. in University of Calgary . [16] [ 78 ] Therefore, I find that the Department has met the burden placed on it under section 43(1) of ATIPPA 2015 to prove that the requester has no right of access to the solicitor-client privileged records.

DISPOSITION [ 79 ] I therefore declare that the Department need not comply with the Commissioner’s recommendation contained in paragraph 44(

b) of his Report A-2019-019, dated August 21, 2019. [ 80 ] At the request of the parties, each shall bear its own costs.

_____________________________ Alexander MacDonald Justice [1] Access to Information and Protection of Privacy Act , S.N.L. 2002, c. A-1.1 , as rep. by Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 ( ATIPPA 2002 ). [2] Record, October 29, 2019 at Tab 5. [3] Record, October 29, 2019 at Tab 6, page 2, paragraph B. [4] See University of Calgary at paras. 19-27. [5] Newfoundland and Labrador, The Freedom of Information Review Committee, Striking the Balance: The Right to Know & the Right to Privacy , vol. 1 (St. John’s: Queen’s Printer, July 2001) (Chair: Joan Dawe). [6] Bill 29,

An Act to Amend the Access to Information and Protection of Privacy Act , 1st Sess., 47th Leg., Newfoundland and Labrador, 2012. [7] Newfoundland and Labrador, Report of the 2014 Statutory Review of the Access to Information and Protection of Privacy Act , vol. II (St. John’s: Queen’s Printer, March 2015) (Chair: Clyde K. Wells). [8] Bill 1,

An Act to Provide the Public with Access to Information and Protection of Privacy, 4th Sess., 47th Leg., Newfoundland and Labrador, 2015. [9] Respondent’s Authorities, Tab 3, Bill 1. [10] Respondent’s Authorities, Tab 2, Report of the 2014 Statutory Review of the Access to Information and Protection of Privacy Act , at page 19. [11] Respondent’s Authorities, Tab 15, Hansard, April 23, 2015 at page 100. [12] Newfoundland and Labrador, Access to Information and Protection of Privacy Act, 2015 , Statutory Review 2020 , vol. 1 (St. John’s: Queen’s Printer, June 2021) at page 119, (Chair: David B.

Orsborn). [14] Rule 32.01(3) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D , says, “A claim that any document is privileged from production shall be made in the list of documents with a sufficient statement of the grounds of the privilege”. [15] Record, October 29, 2019 at Tab 4, page 2. [16] Record, October 29, 2019 at Tab 6, pages 2 and 3, paragraph B.