Information v. Privacy Commissioner of Alberta, 2016 SCC 53

SUPREME COURT OF CANADA Citation: Alberta (Information and Privacy Commissioner) v.

University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555 Appeal heard: April 1, 2016 Judgment rendered: November 25, 2016 Docket: 36460 Between: Information and Privacy Commissioner of Alberta Appellant and Board of Governors of the University of Calgary Respondent - and - Law Society of Alberta, British Columbia Freedom of Information and Privacy Association, Information and Privacy Commissioner of Ontario, Information and Privacy Commissioner for British Columbia, Information and Privacy Commissioner for the Province of Newfoundland and Labrador, Advocates’ Society, Federation of Law Societies of Canada, Canadian Bar Association, Information Commissioner of Canada, Privacy Commissioner of Canada, Manitoba Ombudsman, Northwest Territories Information and Privacy Commissioner, Nova Scotia Information and Privacy Commissioner [Review Officer], Nunavut Information and Privacy Commissioner, Saskatchewan Information and Privacy Commissioner, Yukon Ombudsman and Information and Privacy Commissioner and Criminal Lawyers’ Association Interveners

Coram: Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. Reasons for Judgment: (paras. 1 to 71) Partially Concurring Reasons: (paras. 72 to 129) Partially Concurring Reasons: (paras. 130 to 138) Côté J. (Moldaver, Karakatsanis, Wagner, and Gascon JJ. concurring) Cromwell J. Abella J. Alberta ( Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555 Information and Privacy Commissioner of Alberta Appellant v.

Board of Governors of the University of Calgary Respondent and Law Society of Alberta, British Columbia Freedom of Information and Privacy Association, Information and Privacy Commissioner of Ontario, Information and Privacy Commissioner for British Columbia, Information and Privacy Commissioner for the Province of Newfoundland and Labrador, Advocates’ Society, Federation of Law Societies of Canada, Canadian Bar Association, Information Commissioner of Canada, Privacy Commissioner of Canada, Manitoba Ombudsman, Northwest Territories Information and Privacy Commissioner, Nova Scotia Information and Privacy Commissioner [Review Officer], Nunavut Information and Privacy Commissioner, Saskatchewan Information and Privacy Commissioner, Yukon Ombudsman and Information and Privacy Commissioner and Criminal Lawyers’ Association Interveners Indexed as: Alberta (Information and Privacy Commissioner) v.

University of Calgary 2016 SCC 53

File No.: 36460. 2016: April 1; 2016: November 25.

Present: Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. on appeal from the court of appeal for alberta Privacy — Investigation of complaints — Powers of Information and Privacy Commissioner — Production of documents — Solicitor-client privilege — Dismissed employee filing complaint with Commissioner and seeking access to her personal employment information — Employer claiming solicitor-client privilege over some documents — Whether statutory provision which requires public body to produce records to Commissioner “[d]espite . . . any privilege of the law of evidence” allows Commissioner to review documents over which solicitor-client privilege is claimed — If so, whether Commissioner made reviewable error by ordering production of documents — Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c.

F-25, s. 56(3) . Administrative law — Judicial review — Standard of review — Information and Privacy Commissioner — Standard of review applicable to Commissioner’s decision to compel production of records over which solicitor-client privilege is asserted — Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, s. 56(3) . In the context of a constructive dismissal claim, a delegate of the Information and Privacy Commissioner of Alberta ordered the production of records over which the University of Calgary had claimed solicitor-client privilege.

The delegate was acting in accordance with the Office of the Commissioner’s “Solicitor-Client Privilege Adjudication Protocol”, which required the provision of a copy of “the records at issue” or two copies of “an affidavit or unsworn evidence verifying solicitor-client privilege over the records” to substantiate the claim of solicitor-client privilege.

In compliance with the law and the practice regarding identification of solicitor-client privileged documents in civil litigation in Alberta at that time, the University provided a list of documents identified by page numbers, along with a sworn affidavit indicating solicitor-client privilege had been asserted over the records. After a further request to substantiate the claim of privilege, the delegate issued a Notice to Produce Records under s. 56(3) of the Freedom of Information and Protection of Privacy Act (“ FOIPP ”).

Under that section, a public body must produce required records to the Commissioner “[d]espite . . . any privilege of the law of evidence”. The University sought judicial review of the delegate’s decision to issue the Notice. On judicial review, the Commissioner’s decision was upheld, but on appeal, it was found that “any privilege of the law of evidence”, as used in s. 56(3), did not refer to solicitor-client privilege. Held : The appeal should be dismissed.

Per Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.: Whether s. 56(3) of FOIPP allows the review of documents over which solicitor-client privilege is claimed is a question of central importance to the legal system as a whole and outside the Commissioner’s specialized area of expertise. The question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is one that has potentially wide implications on other statutes. Therefore, the applicable standard of review is correctness for both (

i) the decision that the Commissioner has the authority to require the production of records over which solicitor-client privilege is asserted, and (ii) the decision to issue the Notice to Produce Records. The expression “any privilege of the law of evidence” does not require a public body to produce to the Commissioner documents over which solicitor-client privilege is claimed. Solicitor-client privilege is no longer merely a privilege of the law of evidence, but a substantive right that is fundamental to the proper functioning of our legal system.

The disclosure of documents pursuant to a statutorily established access to information regime, separate from a judicial proceeding, engages solicitor-client privilege in its substantive, rather than evidentiary, context. 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.

Section 56(3) does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. This interpretive approach is not a renunciation of the modern approach to statutory

interpretation, but recognizes legislative respect for fundamental values. Reading s. 56(3) in the context of the statute as a whole supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. First, s. 27(1) of FOIPP unequivocally establishes that a public body may refuse to disclose “information that is subject to any type of legal privilege, including solicitor-client privilege”. Second, this

interpretation is coherent. “[P]rivilege of the law of evidence”, as referenced in s. 56(3), are a narrower category falling within the scope of the broader category of “legal privilege”, as laid out in s. 27(1). Read together, therefore, these two sections provide that a public body can refuse to disclose documents subject to any “legal privilege”, while the Commissioner can obtain production of those documents over which a “privilege of the law of evidence” is asserted in order to adjudicate the claims of privilege.

Third, given its fundamental importance, one would expect that if the legislature had intended to set aside solicitor-client privilege, it would have legislated safeguards to ensure that solicitor-client privileged documents are not disclosed in a manner that compromises the substantive right or addressed whether disclosure of solicitor-client privileged documents to the Commissioner constitutes a waiver of privilege with respect to any other person.

Lastly, even if the language of s. 56(3) did clearly evince legislative intent to set aside solicitor-client privilege, this was not an appropriate case in which to order production to the Commissioner. Although the delegate found that it was necessary to review the records because the University failed to present evidence of its claim of solicitor-client privilege as required by the Protocol, the Protocol is not law. Rather, it is a guide established by the Commissioner to assist adjudicators and public bodies.

At the time, the prevailing authority in Alberta in civil litigation allowed a party to bundle and identify solicitor-client privileged documents by document numbers, and no evidence or argument was made to suggest that solicitor-client privilege had been falsely claimed by the University. In these circumstances, the delegate erred in concluding that the claim needed to be reviewed to fairly decide the issue.

Per Cromwell J.: The express language and the full context of s. 56(3) of the Freedom of Information and Protection of Privacy Act demonstrate that the legislature intended to abrogate solicitor-client privilege to the extent of permitting the Commissioner to order production of records over which solicitor-client privilege is asserted when necessary to adjudicate the validity of that claim.

Section 56(3) explicitly grants that authority “[d]espite . . . any privilege of the law of evidence”, and to hold that solicitor-clientprivilege is a legal privilege but not a “privilege of the law of evidence” in FOIPP is not justified. The grammatical and ordinary meaning of the words “any privilege of the law of evidence” in s. 56(3) includessolicitor-client privilege.

Solicitor-client privilege is both an evidentiary privilege and a substantive principle, but, as the University isseeking immunity from forced production by virtue of the Commissioner’s statutory powers, the evidentiary privilege is at issue here.The fact that s. 27(1) of FOIPP specifically includes the words “solicitor-client privilege” does not detract from this

interpretation ofs. 56(3) because these provisions perform different functions. Section 27(1) sets out a number of grounds upon which a public body canrefuse to order disclosure, whereas s. 56 provides what the Commissioner can and cannot do in the context of conducting an inquiry.Nothing in either

section can be read as saying that the Commissioner is prevented from ordering the production of documents subject toa claim of solicitor-client privilege in the context of answering all questions of law and fact that arise in the course of an inquiry. This

interpretation is also supported by a number of contextual factors. First, the statutory scheme unambiguously supportsthe view that the legislature intended the Commissioner to have the powers required to decide whether or not records should be producedby a public body — including ruling on claims of privilege — subject to judicial review of the exercise of those powers.

Specifically,FOIPP provides a detailed, self-contained process for the disclosure of information to an applicant, and the Commissioner would not beable to fulfill this statutory mandate without the power to review a claim of solicitor-client privilege. Second, none of the factors that weigh against a finding that a statute abrogates solicitor-client privilege are in play here: theCommissioner has adjudicative powers; the Commissioner does not appear on behalf of the complainant; and the language used ins. 56(3) is not open-textured language governing production of documents.

On the contrary, s. 56(3) expressly provides that the power toorder production applies notwithstanding any privilege of the law of evidence. Finally, the debates leading up to the enactment of the first version of FOIPP support an

interpretation of s. 56(3) asabrogating solicitor-client privilege, as does the fact that the same expression in the parallel British Columbia legislation clearly includessolicitor-client privilege. Even though the Commissioner has the authority to compel production for review of records over which solicitor-clientprivilege is asserted and assuming, without deciding, that the correctness standard of review applies, she made a reviewable error to orderproduction in the face of the evidence submitted in relation to the claim of privilege.

The University’s claim of privilege complied withthe requirements of Alberta civil litigation practice at the time, and it was a reviewable error for the Commissioner’s delegate to impose amore onerous standard on the University in relation to its assertion of privilege than that applicable in civil litigation before the courts.The evidence filed with the Commissioner clearly asserts that the documents are communications between solicitor and client whichentails the seeking or giving of legal advice, and which is intended to be confidential by the parties.

Per Abella J.: The standard of review in this case should be reasonableness in accordance with this Court’s jurisprudencereviewing decisions of Information and Privacy Commissioners, including decisions involving solicitor-client privilege. The question inthis case does not fall within any of the categories which attract correctness review under Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. On the contrary, the Commissioner is interpreting her home statute, which includes the express mandateto consider the application of solicitor-client privilege. This is classic “reasonableness review” territory.

But the Commissioner’s decision to order disclosure was unreasonable. The Commissioner should have exercised herdiscretion in a manner that interfered with solicitor-client privilege only to the extent absolutely necessary to achieve the ends sought byher enabling legislation. In ordering disclosure, she did not sufficiently take into account the fact that the University provided adequatejustification for solicitor-client privilege, particularly in light of the laws and practices applicable in the civil litigation context in Alberta. Cases Cited By Côté J. Applied: Canada (Privacy Commissioner) v.

Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574;Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445;Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Canada (National Revenue) v. Thompson,2016 SCC 21, [2016] 1 S.C.R. 381; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135;Legal Services Society v. British Columbia (Information and Privacy Commissioner), 2003 BCCA 278, 226 D.L.R. (4th) 20; Ontario(Public Safety and Security) v.

Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809; Smith v. Jones, (SCC), [1999] 1 S.C.R. 455; Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R.336; Descôteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860; Solosky v. The Queen, (SCC), [1980] 1S.C.R. 821; Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193; Canada (Attorney General) v. Federation of Law Societies ofCanada, 2015 SCC 7, [2015] 1 S.C.R. 401; Goodis v.

Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32; R.v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2S.C.R. 559; R. v. Barnier, (SCC), [1980] 1 S.C.R. 1124; Ansell Canada Inc. v. Ions World Corp. (1998), 28 C.P.C.(4th) 60; Dorchak v. Krupka, 1997 ABCA 89, 196 A.R. 81. By Cromwell J. Applied: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574;referred to: Canada (National Revenue) v.

Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; FosterWheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456;Descôteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860; Newfoundland and Labrador (Attorney General) v. Informationand Privacy Commissioner (Nfld. and Lab.), 2011 NLCA 69, 314 Nfld. & P.E.I.R. 305; Canada (Information Commissioner) v.

Canada(Minister of Environment) (2000), (FCA), 187 D.L.R. (4th) 127; Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1S.C.R. 23; Dorchak v. Krupka, 1997 ABCA 89, 196 A.R. 81; Canadian Natural Resources Ltd. v. ShawCor Ltd., 2014 ABCA 289, 580A.R. 265; Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821. By Abella J. Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: McLean v. British Columbia(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Nor-Man Regional Health Authority Inc. v.

Manitoba Association ofHealth Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Alberta (Information and Privacy Commissioner) v. United Food andCommercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; Canada (Privacy Commissioner) v. Blood Tribe Department ofHealth, 2008 SCC 44, [2008] 2 S.C.R. 574; Ontario (Community Safety and Correctional Services) v. Ontario (Information and PrivacyCommissioner), 2014 SCC 31, [2014] 1 S.C.R. 674; John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3; Alberta(Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Ontario (Public Safetyand Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Pritchard v. Ontario (Human Rights Commission),2004 SCC 31, [2004] 1 S.C.R. 809; Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381. Statutes and Regulations Cited Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1, s. 52. Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, ss. 2(c), (e), 7, 27, 53(1)(a), 56, 58, 59(1), (4), 65(1), 69(1),70, 72(1), (2)(a), 73.

Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 44. Freedom of Information and Protection of Privacy Act, S.A. 1994, c. F-18.5, s. 54(3). Freedom of Information and Protection of Privacy Amendment Act, 2003, S.B.C. 2003, c. 5, s. 15. Personal Information Protection Act, S.A. 2003, c. P-6.5, s. 38(3). Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss. 12 [repl. 2010, c. 23, s. 83], 12.1, 15. Privacy Act, R.S.C. 1985, c. P-21, s. 34(2). Public Inquiries Act, R.S.A. 2000, c. P-39. Public Inquiry Act, S.B.C. 2007, c. 9, s. 76. Authors Cited Alberta.

Legislative Assembly. Alberta Hansard, 2nd Sess., 23rd Leg., April 11, 1994, p. 1052. Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess., 23rd Leg., April 18, 1994, pp. 1239-40. Alberta. Legislative Assembly. Alberta Hansard, 2nd Sess., 23rd Leg., May 5, 1994, p. 1752. Alberta. Office of the Information and Privacy Commissioner. “Solicitor-Client Privilege Adjudication Protocol”, October 2008 (online:www.oipc.ab.ca/media/613544/practice_note_solicitor_client_privilege_protocol_oct2008.pdf). Cross, Rupert. Cross on Evidence, 5th ed. London: Butterworths, 1979. Dodek, Adam M. Solicitor-Client Privilege.

Markham, Ont.: LexisNexis, 2014. Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada. Aurora, Ont.: Canada Law Book,2006 (loose-leaf updated August 2016, release 35). Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 4th ed. Markham, Ont.: LexisNexis,2014. Manes, Ronald D., and Michael P. Silver. Solicitor-Client Privilege in Canadian Law. Toronto: Butterworths, 1993. Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.

APPEAL from a judgment of the Alberta Court of Appeal (Rowbotham, Bielby and Brown JJ.A.), 2015 ABCA 118, 602A.R. 35, 647 W.A.C. 35, 12 Alta. L.R. (6th) 272, 81 Admin. L.R. (5th) 257, 382 D.L.R. (4th) 299, [2015] 7 W.W.R. 213, [2015] A.J.No. 348 (QL), 2015 CarswellAlta 574 (WL Can.), setting aside a decision of Jones J., 2013 ABQB 652, 90 Alta. L.R. (5th) 94, 574 A.R.137, 66 Admin. L.R. (5th) 254, [2013] A.J. No. 1233 (QL), 2013 CarswellAlta 2198 (WL Can.). Appeal dismissed. Glenn Solomon, Q.C., and Elizabeth Aspinall, for the appellant. Robert W. Calvert, Q.C., and Michael D. A. Ford, Q.C., for the respondent.

David Phillip Jones, Q.C., and Victoria A. Jones, for the intervener the Law Society of Alberta.

Written submissions only by Michael A. Feder and Emily MacKinnon , for the intervener the British Columbia Freedom of Information and Privacy Association. Lawren Murray and David Goodis , for the intervener the Information and Privacy Commissioner of Ontario. Ivan Bernardo , Q.C. , Gerald Chipeur , Q.C. , and Jill W. Wilkie , for the intervener the Information and Privacy Commissioner for British Columbia. Andrew A. Fitzgerald , for the intervener the Information and Privacy Commissioner for the Province of Newfoundland and Labrador. Perry R. Mack , Q.C. , for the intervener the Advocates’ Society.

Mahmud Jamal and David Rankin , for the intervener the Federation of Law Societies of Canada. Michele H. Hollins , Q.C. , James L. Lebo , Q.C. , and Jason L. Wilkins , for the intervener the Canadian Bar Association. Marlys A.

Edwardh , Daniel Sheppard , Regan Morris , Diane Therrien and Aditya Ramachandran , for the interveners the Information Commissioner of Canada, the Privacy Commissioner of Canada, the Manitoba Ombudsman, the Northwest Territories Information and Privacy Commissioner, the Nova Scotia Information and Privacy Commissioner [Review Officer], the Nunavut Information and Privacy Commissioner, the Saskatchewan Information and Privacy Commissioner and the Yukon Ombudsman and Information and Privacy Commissioner.

Written submissions only by Brian Gover , Justin Safayeni and Carlo Di Carlo , for the intervener the Criminal Lawyers’ Association. The judgment of Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. was delivered by Côté J. — I. Overview [ 1 ] This case involves a judicial review of a decision pursuant to the Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 (“ FOIPP ”).

A delegate of the Information and Privacy Commissioner of Alberta (“Commissioner”) ordered the production of records over which solicitor-client privilege was claimed in order to verify that the privilege was properly asserted.

At the heart of this appeal is whether s. 56(3) of FOIPP , which requires a public body to produce required records to the Commissioner “[d]espite . . . any privilege of the law of evidence”, allows the Commissioner and her delegates to review documents over which solicitor-client privilege is claimed. [ 2 ] I conclude that s. 56(3) does not require a public body to produce to the Commissioner documents over which solicitor-client privilege is claimed. As this Court held in Canada (Privacy Commissioner) v.

Blood Tribe Department of Health , 2008 SCC 44 , [2008] 2 S.C.R. 574, solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection.

Therefore, I am of the view that solicitor-client privilege is not captured by the expression “privilege of the law of evidence”. Moreover, a reading of s. 56(3) in the context of the statute as a whole also supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. Further, even if s. 56(3) could be construed as authorizing the Commissioner to review documents over which privilege is claimed, this was not an appropriate case in which to order production of the documents for review. Consequently, I would dismiss the appeal. II.

Facts [ 3 ] The University of Calgary (“University”) was sued by a former employee who brought a claim of constructive dismissal. In October 2008, the former employee made a request for access to information under s. 7 of FOIPP , seeking records about her in the University’s possession. [ 4 ] The University provided some records in response to the request, but claimed solicitor-client privilege over other records. In March 2009, the former employee brought an application under FOIPP seeking production of the withheld records.

A delegate of the Commissioner (“delegate”) conducted an inquiry on the matter, acting in accordance with the Office of the Commissioner’s “Solicitor-Client Privilege Adjudication Protocol” (“Protocol”) (online). The Protocol states how, according to the Office of the Commissioner, claims of solicitor-client privilege can be substantiated without revealing the details of the communications.

Basing himself on the Protocol, the delegate issued a Notice of Inquiry instructing the University to provide a copy of “the records at issue” or two copies of “an affidavit or unsworn evidence verifying solicitor-client privilege over the records”. [ 5 ] In August 2010, the University declined to provide a copy of the withheld records, and instead provided a list of documents identified by page numbers only. This way of proceeding complied with the law and the practice regarding identification of solicitor-client privileged documents in civil litigation in Alberta at that time.

The University also provided a sworn affidavit from its Access and Privacy Coordinator indicating solicitor-client privilege had been asserted over the records.

Later, the University further provided a letter from its Provost and Vice-President (Academic), asserting solicitor-client privilege over the records. [ 6 ] In September 2010, the delegate directed the University to substantiate its claim of solicitor-client privilege by either providing him with a copy of the records, or providing additional information regarding the records at issue, including, for example, the date and length of the record, and some information regarding the author and addressee.

[ 7 ] The University did not comply with either direction. As a result, the delegate issued a Notice to Produce Records under s. 56(3) of FOIPP , requiring the University to produce the documents for review. Section 56(3) reads:

(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). [ 8 ] The University again did not comply, and in October 2010 sought judicial review of the delegate’s decision to issue the Notice to Produce Records. This is the matter on appeal. [ 9 ] It is noteworthy that the applicant, the former employee, is not a party to the present appeal.

Her litigation against the University concluded in 2012 and she has had no involvement in the matter since then ( 2012 ABQB 342 , 545 A.R. 110). Therefore, the claim for production is moot at this time. III. Decisions Below A. Information and Privacy Commissioner of Alberta [ 10 ] In his decision rendered October 20, 2010, the delegate required the University to produce a copy of the records over which solicitor-client privilege was claimed, to allow the delegate to determine whether solicitor-client privilege had been properly asserted.

The delegate concluded that this case was an exceptional one, as the University of Calgary had failed to present adequate evidence of its claim of solicitor-client privilege, and therefore it was necessary to review the records in question to determine whether the University had properly withheld the records. B. Alberta Court of Queen’s Bench, 2013 ABQB 652 , 574 A.R. 137 [ 11 ] On judicial review, Justice Jones first concluded that the appropriate standard of review was correctness. He applied the modern approach to statutory

interpretation and found that s. 56(3) of FOIPP permits the Commissioner to compel the production of disputed records to verify claims of solicitor-client privilege. He reviewed the jurisprudence on similar provisions in other statutes, and concluded that the Alberta legislature’s intent in enacting FOIPP was clear.

The application judge also found that the provisions of FOIPP do not work together effectively unless the Commissioner has the power to compel the production of information over which privilege is alleged since FOIPP provides no other mechanism to review that type of claim. [ 12 ] The application judge then considered the delegate’s exercise of the power to compel the production of the documents. He found that the delegate had correctly issued the notice, noting that the University had refused to substantiate in any other way its claims of solicitor-client privilege.

Overall, he concluded the delegate’s approach established “a framework that interferes with the confidentiality and privilege only to the extent absolutely necessary” (para. 233). C. Alberta Court of Appeal, 2015 ABCA 118 , 602 A.R. 35 [ 13 ] The Court of Appeal allowed the University’s appeal, concluding that the Commissioner did not have statutory authority to compel the production of records over which solicitor-client privilege was asserted. It agreed with the application judge that the applicable standard of review was correctness. Regarding statutory

interpretation, however, the Court of Appeal held that Blood Tribe ousts the modern approach to statutory

interpretation where solicitor-client privilege is at stake. Instead, the rule of strict construction applies, which requires clear, explicit and specific reference to solicitor-client privilege. [ 14 ] Following the rule of strict construction, the Court of Appeal concluded that an inference would need to be drawn to conclude that “any privilege of the law of evidence” refers to solicitor-client privilege.

Therefore, the language of s. 56(3) was found to be not sufficiently specific to evince clear legislative intent. [ 15 ] The Court of Appeal also observed that a number of contextual factors supported its conclusion. First, neither the Commissioner nor her delegate needed to be a lawyer and could lack the legal training necessary to adjudicate claims of solicitor-client privilege. Second, FOIPP authorized the Commissioner to disclose information relating to the commission of an offence to the Minister of Justice and the Attorney General. Third, s. 38(3) of the Personal Information Protection Act , S.A. 2003, c.

P-6.5, which applies to law firms, also permits the Commissioner to require the production of records “[n]otwithstanding . . . any privilege of the law of evidence”. The Court of Appeal noted that allowing solicitor-client privilege to be infringed in that context would be undesirable. IV. Issues [ 16 ] This appeal raises the following questions: 1. What is the appropriate standard of review applicable to the Commissioner’s decision? 2. What approach to statutory

interpretation applies to provisions purporting to abrogate, pierce, set aside or infringe solicitor-client privilege? 3. Does s. 56(3) of FOIPP require a public body to produce to the Commissioner records over which solicitor-client privilege is claimed? V. Submissions of the Parties A. Information and Privacy Commissioner of Alberta

[17] The Commissioner argues that the appropriate standard of review is reasonableness. Regarding statutoryinterpretation, she submits a purposive analysis should be applied. In brief, the Commissioner takes the position that s. 56(3) of FOIPPexpressly grants her the power to review records over which solicitor-client privilege is claimed. She argues that solicitor-client privilegeis a privilege of the law of evidence; thus the words “any privilege of the law of evidence” in s. 56(3) clearly abrogate solicitor-clientprivilege. The Commissioner submits that the substantive nature of solicitor-client privilege does not preclude this

interpretation, and sheargues that a contextual analysis supports her position. B. Board of Governors of the University of Calgary [18] In contrast, the University’s Board of Governors argues that the appropriate standard of review is correctness.Regarding statutory

interpretation, it submits that express, clear and precise words are necessary to permit the Commissioner to piercesolicitor-client privilege. The University’s Board of Governors’ primary argument is that s. 56(3) does not contain express words to thateffect since solicitor-client privilege has been elevated from a rule of evidence to a substantive and fundamental rule of law. In thealternative, the University’s Board of Governors submits that even if s. 56(3) could be construed as expressly giving the Commissionerthe power to pierce solicitor-client privilege, disclosure was not appropriate in this case.

The University’s Board of Governors alsoargues that a contextual analysis supports its position. VI. Analysis A. Standard of Review [19] The application judge and the Court of Appeal concluded that the applicable standard of review was correctness. Iagree. [20] Whether FOIPP allows solicitor-client privilege to be set aside is a question of central importance to the legalsystem as a whole and outside the Commissioner’s specialized area of expertise. As this Court said in Blood Tribe, solicitor-clientprivilege is “fundamental to the proper functioning of our legal system” (para. 9).

It is also a privilege that has acquired constitutionaldimensions as both a principle of fundamental justice and a part of a client’s fundamental right to privacy (R. v. McClure, 2001 SCC 14,[2001] 1 S.C.R. 445, at para. 41; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, atpara. 46; see also Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 17).

Further, as the Court ofAppeal observed, the question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-clientprivilege is a question that has potentially wide implications on other statutes. [21] In Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, Rothstein J.,writing for the Court, discussed how a question of statutory

interpretation that does not have wide implications on other statutes wouldnot be of central importance to the legal system as a whole and would thus attract a reasonableness standard. Paragraph 60 of NationalRailway reads as follows: This is also not a question of central importance to the legal system as a whole. The question at issue centres on the

interpretation of s.120.1 of the [Canada Transportation Act, S.C. 1996, c. 10 (“CTA”)]. The question is particular to this specific regulatory regime as itinvolves confidential contracts as provided for under the CTA and the availability of a complaint-based mechanism that is limited toshippers that meet the statutory conditions under s. 120.1(1). This question does not have precedential value outside of issues arisingunder this statutory scheme.

Conversely, it follows that where — as in this case — the question does have wide implications on other statues, the appropriate standardof review is correctness. [22] In addition, there is nothing to suggest that the Commissioner has particular expertise with respect to solicitor-clientprivilege, an issue which has traditionally been adjudicated by courts (see Legal Services Society v. British Columbia (Information andPrivacy Commissioner), 2003 BCCA 278, 226 D.L.R. (4th) 20, at para. 25). Therefore, the applicable standard of review is correctness(Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60), for both (

i) the decision that the Commissioner has theauthority to require the production of records over which solicitor-client privilege is asserted, and (ii) the decision to issue the Notice toProduce Records. [23] My colleague Justice Abella thinks otherwise. Drawing from six judgments of this Court involving disclosuredecisions by Information and Privacy Commissioners, she suggests that there is a “clear lineage” of cases dictating that the standard ofreview in this appeal should be reasonableness.

With respect, I cannot agree. [24] Of the six decisions identified by Abella J., only two mention solicitor-client privilege. One of them is Blood Tribe,in which Binnie J. in effect reviewed the impugned decision on the standard of correctness, although he did not expressly state so. Theother is Ontario (Public Safety and Security) v.

Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, which addressed, asa secondary issue, whether the Assistant Commissioner properly exercised his discretion under a provision explicitly permitting him toexempt from disclosure documents subject to solicitor-client privilege. That was it. Resolution of that question had few ramifications onthe principle of solicitor-client privilege and its application beyond the particular exercise of discretion in that case. [25] The question here is different. It does not just ask whether the Commissioner exercised her discretion appropriatelyin the instant case.

It asks whether the phrase “privilege of the law of evidence” suffices to identify, for the purpose of abrogation, thesubstantive features of solicitor-client privilege. This necessitates an inquiry into both the substantive and evidentiary qualities of theprivilege. [26] The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilegeconcerned with the protection of a relationship that has a central importance to the legal system as a whole. In R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263, Chief Justice Lamer described its rationale as follows:

The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications betweensolicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the verysystem which desires the disclosure of the communication . . . . [Emphasis added; p. 289.] [27] Having determined that the applicable standard of review is correctness, I now proceed to apply this standard to thedecision at hand. B. Principles of Statutory

Interpretation [28] To give effect to solicitor-client privilege as a fundamental policy of the law, legislative language purporting toabrogate it, set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent todo so. The privilege cannot be set aside by inference (Blood Tribe, at para. 11; Pritchard v. Ontario (Human Rights Commission), 2004SCC 31, [2004] 1 S.C.R. 809, at para. 33; Lavallee, at para. 18).

As this Court affirmed in Thompson: . . . it is only where legislative language evinces a clear intent to abrogate solicitor-client privilege in respect of specific information thata court may find that the statutory provision in question actually does so. Such an intent cannot simply be inferred from the nature of thestatutory scheme or its legislative history, although these might provide supporting context where the language of the provision is alreadysufficiently clear.

If the provision is not clear, however, it must not be found to be intended to strip solicitor-client privilege fromcommunications or documents that this privilege would normally protect. [para. 25] [29] I would also add that this requirement is not a renunciation of the modern approach to statutory

interpretation.Indeed, on my reading, Blood Tribe does not preclude using a full modern approach to interpret words purportedly abrogating privilege.Rather than supporting adoption of a strict construction rule, the analysis conducted in Blood Tribe reflects what is essentially themodern approach to statutory

interpretation when dealing with solicitor-client privilege, insofar as it recognizes legislative respect forfundamental values. The modern approach was followed by this Court in Thompson, and the same approach is followed here. Therefore,in no way is this Court returning to the plain meaning rule or abandoning the modern approach. C. Freedom of Information and Protection of Privacy Act [30] Access to information is an important element of a modern democratic society.

As this Court stated in CriminalLawyers’ Association: Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public,and enhance an open and democratic society.

Some information in the hands of those institutions is, however, entitled to protection inorder to prevent the impairment of those very principles and promote good governance. [para. 1] [31] One of the purposes of FOIPP is “to allow individuals, subject to limited and specific exceptions as set out in thisAct, a right of access to personal information about themselves that is held by a public body” (s. 2(c)). As the language of s. 2(

c) reveals,the statute does not grant unfettered access to records; requests for access are subject to certain exceptions. [32] FOIPP also creates a process for conducting “independent reviews of decisions made by public bodies under thisAct and the resolution of complaints under this Act” (s. 2(e)). In this regard, a person making a request for access to a record “may askthe Commissioner to review any decision, act or failure to act” of the head of a public body relating to the request (s. 65(1)).

TheCommissioner’s responsibilities include conducting investigations to ensure compliance with FOIPP (s. 53(1)(a)) and conductinginquiries to deal with requests for a review (s. 69(1)). [33] At the heart of this appeal is s. 56(3) of FOIPP.

Section 56 reads as follows: 56(1) In conducting an investigation under section 53(1)(

a) or an inquiry under

section 69 or 74.5 or in giving advice andrecommendations under

section 54, the Commissioner has all the powers, privileges and immunities of a commissioner under the PublicInquiries 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 10days any record or a copy of any record required under subsection (1) or (2). The primary issue in this case is whether s. 56(3) of FOIPP requires a public body to produce to the Commissioner records over whichsolicitor-client privilege is claimed, to review the validity of the claim. This appeal therefore deals with the obligation of the Universityto disclose solicitor-client privileged documents to the Commissioner for review.

This appeal does not raise the issue of whether theCommissioner may order the disclosure of solicitor-client privileged documents to the applicant. D. Solicitor-Client Privilege [34] It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and acornerstone of access to justice (Blood Tribe, at para. 9). Lawyers have the unique role of providing advice to clients within a complexlegal system (McClure, at para. 2).

Without the assurance of confidentiality, people cannot be expected to speak honestly and candidlywith their lawyers, which compromises the quality of the legal advice they receive (see Smith v. Jones, (SCC), [1999] 1S.C.R. 455, at para. 46). It is therefore in the public interest to protect solicitor-client privilege. For this reason, “privilege is jealously

guarded and should only be set aside in the most unusual circumstances” (Pritchard, at para. 17). [35] Further, solicitor-client privilege belongs to the client, not to the lawyer (Canada (Attorney General) v. Chambre desnotaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336, at para. 48; Blood Tribe, at para. 9). Seen through the eyes of the client,compelled disclosure to an administrative officer alone constitutes an infringement of the privilege (Blood Tribe, at para. 21).

Therefore,compelled disclosure to the Commissioner for the purpose of verifying solicitor-client privilege is itself an infringement of the privilege,regardless of whether or not the Commissioner may disclose the information onward to the applicant. [36] In this regard, it is noteworthy that the Commissioner is not an impartial adjudicator of the same nature as a court.FOIPP empowers the Commissioner to exercise both adjudicative and investigatory functions. Unlike a court, the Commissioner canbecome adverse in interest to a public body.

The Commissioner may take a public body to court and become a party in litigation againsta public body that refuses to disclose information. These features of the Commissioner’s powers further indicate that disclosure to theCommissioner is itself an infringement of solicitor-client privilege. E. Application [37] The key issue in this case is whether s. 56(3) of FOIPP, which requires a public body to produce to theCommissioner records “[d]espite . . . any privilege of the law of evidence”, allows the Commissioner to review documents that theUniversity claims are protected by solicitor-client privilege.

I conclude that “any privilege of the law of evidence” is not sufficientlyclear and precise to set aside or permit an infringement of solicitor-client privilege.

(1) Solicitor-Client Privilege Is Not Merely a Rule of Evidence [38] First, it is well established that solicitor-client privilege has evolved from a rule of evidence to a rule of substance(Blood Tribe, at para. 10; Thompson, at para. 17; Chambre des notaires, at para. 28). Further, as indicated above, some even suggest thatthe Court has granted it a quasi-constitutional status. [39] Formerly, solicitor-client privilege as a rule of evidence meant that a client and his or her lawyer were not requiredto tender confidential communications into evidence in a judicial proceeding (Descôteaux v.

Mierzwinski, (SCC), [1982]1 S.C.R. 860, at p. 876, citing R. Cross, Cross on Evidence (5th ed. 1979), at p. 282). As R. D. Manes and M. P. Silver state in Solicitor-Client Privilege in Canadian Law (1993), at p. 2: The origin of the law of privilege goes back to Tudor times in England, and originated as a respect for the oath and honour of a lawyerwho was duty-bound to guard the client’s secrets.

At first, the duty was restricted to an exemption only from testimonial compulsion, thatis, the right of the lawyer or client to refuse to testify in court regarding confidential communications. [Emphasis added; footnoteomitted.] In its early days, solicitor-client privilege was restricted in operation to an exemption from testimonial compulsion (Solosky v. TheQueen, (SCC), [1980] 1 S.C.R. 821, at p. 834). [40] As early as Solosky, however, this Court recognized that solicitor-client privilege had been placed “on a new plane”,and extended beyond the courtroom context (p. 836).

Two years later, in Descôteaux, this Court elaborated on solicitor-client privilegeas a substantive rule and formulated it as follows: 1. The confidentiality of communications between solicitor and client may be raised in any circumstances where suchcommunications 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 anotherperson’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour ofprotecting the confidentiality. 3.

When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with thatconfidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to notinterfering 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 interpretedrestrictively. [p. 875] Thus, the substantive rule expanded the circumstances in which solicitor-client privilege applies, and also introduced protectionsgoverning when the privilege can be abrogated, set aside or infringed. [41] Following Descôteaux, this Court has found solicitor-client privilege to apply in circumstances outside thecourtroom, including search and seizure of documents in a lawyer’s office (Lavallee; Maranda v.

Richer, 2003 SCC 67, [2003] 3 S.C.R.193; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401) and disclosure ofdocuments in the context of access to information legislation (Blood Tribe; Goodis v. Ontario (Ministry of Correctional Services), 2006SCC 31, [2006] 2 S.C.R. 32; Criminal Lawyers’ Association). In its modern form, solicitor-client privilege is not merely a rule ofevidence; it is “a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law” (Lavallee, atpara. 49).

[ 42 ] I find that the present case engages solicitor-client privilege in its substantive, rather than evidentiary, context. This case is not occupied with the tendering of privileged materials as evidence in a judicial proceeding. Rather, it deals with disclosure of documents pursuant to a statutorily established access to information regime, separate from a legal proceeding. While it is true that the person who applied for the information was initially seeking the information for use as evidence in separate litigation against the University, her lawsuit has since ended.

In addition, the Privacy Commissioner is not seeking to review the solicitor-client privileged information as evidence in order to decide a legal dispute. The disclosure of the information in this context is therefore not related to the “evidentiary privilege”. Rather, disclosure in this case is more akin to the review of mail being delivered to prison inmates, which this Court addressed in Solosky .

In that case, as it was described in Descôteaux , the Court “applied a standard that has nothing to do with the rule of evidence . . . since there was never any question of testimony before a tribunal or court” (p. 875).

Equally, the absence of such a question here highlights the engagement of solicitor-client privilege in its substantive, rather than evidentiary, role. [ 43 ] This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary ( Chambre des notaires , at para. 28, citing Lavallee , at paras. 36-37, McClure , at para. 35 , R. v. Brown , 2002 SCC 32 , [2002] 2 S.C.R. 185, at para. 27 , and Goodis , at para. 15 ).

Within the evidentiary context of criminal proceedings, for example, the substantive nature of solicitor-client privilege has been interpreted as meaning the privilege only yields in “certain clearly defined circumstances, and does not involve a balancing of interests on a case-by- case basis” ( McClure , at para. 35 ).

These limited categories, which will only be satisfied in rare circumstances, include the accused’s right to make full answer and defence ( McClure ; Brown ) and where public safety is at stake ( Smith ). [ 44 ] 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. In contrast, some categories of privilege, such as spousal communication privilege, religious communication privilege and the privilege over settlement discussions, only operate in the evidentiary context of a court proceeding.

Such privileges clearly fall squarely within the scope of “privilege of the law of evidence”. [ 45 ] In this regard, it is noteworthy that s. 56(3) of FOIPP was first enacted in its present form in 1994, in the Freedom of Information and Protection of Privacy Act , S.A. 1994, c. F-18.5, s. 54(3). At that time, the elevation of solicitor-client privilege from a privilege of the law of evidence into a substantive privilege had been well established in the jurisprudence for over a decade.

(2) Blood Tribe Does Not Stand for the Proposition That Solicitor-Client Privilege Is a “Privilege of the Law of Evidence” [ 46 ] The Commissioner argues that, according to Blood Tribe , the phrase “any privilege of the law of evidence” is sufficiently clear and precise to abrogate solicitor-client privilege.

In Blood Tribe , the provision at issue was s. 12 of the Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5 (“ PIPEDA ”), which permitted the Privacy Commissioner of Canada to compel the production of any record “in the same manner and to the same extent as a superior court of record” (now s. 12.1; see S.C. 2010, c. 23, s. 83 ).

This Court concluded that s. 12 of PIPEDA amounted to a general production provision and was not sufficiently express to abrogate solicitor-client privilege (para. 21). [ 47 ] In Blood Tribe , the Privacy Commissioner of Canada argued that her investigatory powers under PIPEDA should be interpreted consistently with her powers under the Privacy Act , R.S.C. 1985, c. P-21, which allowed her to examine information notwithstanding “any privilege under the law of evidence” (s. 34(2)). Justice Binnie, writing for the Court, rejected this argument.

He observed that the Privacy Commissioner of Canada’s powers under PIPEDA and the Privacy Act were not the same since, unlike the general production provision in PIPEDA , s. 34(2) of the Privacy Act contained “explicit language granting access to confidences” (para. 28). [ 48 ] In this appeal, the Commissioner now argues that s. 34(2) of the Privacy Act , which Justice Binnie observed contained “explicit language granting access to confidences”, is very similar to the provision presently at issue. Section 34(2) of the Privacy Act reads as follows:

(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence , the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds. [ 49 ] I do not accept the Commissioner’s argument that Blood Tribe supports her

interpretation, for two reasons. First, this Court specifically acknowledged in Blood Tribe that the scope of s. 34(2) of the Privacy Act was not at issue, and that “[t]he proper

interpretation of s. 34(2) must await a case in which it is squarely raised” (para. 29). In Blood Tribe , this Court turned to s. 34(2) merely to demonstrate that the powers of the Privacy Commissioner of Canada were not the same under PIPEDA and the Privacy Act in response to an argument raised by the Privacy Commissioner (paras. 28-29).

The Court in Blood Tribe did not lay out definitive criteria with respect to the words contained in s. 34(2) of the Privacy Act . [ 50 ] Second, while the terms “privilege under the law of evidence” or “privilege of the law of evidence” contain explicit language granting access to some confidences, as Justice Binnie acknowledged, I am of the view that they do not clearly set aside or permit to infringe solicitor-client privilege. As I have discussed, solicitor-client privilege is not merely a rule of evidence, having been elevated to a rule of substance. Further, a contextual

interpretation of s. 56(3) within the scheme of FOIPP supports the conclusion that the legislature did not intend to set aside solicitor-client privilege.

(3) The Statutory Scheme Supports a Finding That Solicitor-Client Privilege Is Not Set Aside [ 51 ] In addition to the lack of clear, explicit and unequivocal language in the provision, a reading of s. 56(3) in the context of the statute as a whole supports the conclusion that the legislature did not intend to set aside solicitor-client privilege. [ 52 ] First, s. 27(1) of FOIPP unequivocally establishes that a public body may refuse to disclose solicitor-client

privileged documents: 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, Section 27(1) recognizes and protects a public body’s right to solicitor-client privilege, using the term “solicitor-client privilege”. Thisindicates that the legislature had turned its mind to the specific issue of solicitor-client privilege and was alive to its significance.

If thelegislature had intended s. 56(3) to compel a public body to produce to the Commissioner documents over which solicitor-client privilegeis asserted, it could have used clear, explicit and unequivocal language, as it did in s. 27(1) of the same statute where it granted publicbodies a right to assert solicitor-client privilege over information.

When setting out the Commissioner’s production powers, thelegislation did not use equally precise language that would set aside the privilege for the Commissioner, or permit her to infringe it. [53] In addition, the use of the term “privilege of the law of evidence” in s. 56(3) in contrast to “legal privilege” ins. 27(1) is significant, since legislatures are presumed to use expressions consistently within a statute (R. Sullivan, Sullivan on theConstruction of Statutes (6th ed. 2014), at §8.36).

Therefore, where different terms are used in a single piece of legislation, they must beunderstood to have different meanings; otherwise the legislature would have employed only one term or the other (Agraira v. Canada(Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 81; R. v. Barnier, (SCC),[1980] 1 S.C.R. 1124, at pp. 1135-36).

If the legislature intended to allow the Commissioner to compel the production of documents overwhich solicitor-client privilege is asserted under s. 56(3), it could have done so using the words it used in s. 27(1) rather than the phrase“privilege of the law of evidence”. [54] Second, this

interpretation is a coherent one. In the context of FOIPP, the term “legal privilege” is a broadercategory than “privilege of the law of evidence”. As Professor Sullivan states, “[t]he purpose of a list of examples following the word‘including’ is normally to emphasize the broad range of general language and to ensure that it is not inappropriately read down so as toexclude something that is meant to be included” (§4.39).

In the case of s. 27(1), the general language of the phrase “any type of legalprivilege” is followed by “including solicitor-client privilege or parliamentary privilege” to ensure that those two sources of privilege,among the most highly protected privileges, are included. This provision clearly demonstrates the legislature’s intent to protect a broadrange of privileged documents from forced disclosure by a public body to an applicant. [55] “[A]ny privilege of the law of evidence” is a narrower category falling within the scope of “legal privilege”.

Unders. 56(3), a public body is required to produce to the Commissioner documents over which a “privilege of the law of evidence” is claimedto assess the validity of the privilege. [56] Read together, ss. 27(1) and 56(3) provide that a public body can refuse to disclose documents subject to any “legalprivilege”.

The Commissioner can obtain production of some privileged documents for review, namely those over which a “privilege ofthe law of evidence” is asserted, and can adjudicate claims of privilege in those cases. [57] Solicitor-client privilege is clearly a “legal privilege” under s. 27(1), but not clearly a “privilege of the law ofevidence” under s. 56(3). As discussed, the expression “privilege of the law of evidence” is not sufficiently precise to capture the broadersubstantive importance of solicitor-client privilege.

Therefore, the head of a public body may refuse to disclose such informationpursuant to s. 27(1), and the Commissioner cannot compel its disclosure for review under s. 56(3). This simply means that theCommissioner will not be able to review documents over which solicitor-client privilege is claimed.

This result is consistent with thenature of solicitor-client privilege as a highly protected privilege. [58] Third, given its fundamental importance, one would expect that if the legislature had intended to set aside solicitor-client privilege, it would have legislated certain safeguards to ensure that solicitor-client privileged documents are not disclosed in amanner that compromises the substantive right. In addition, there is no provision in FOIPP addressing whether disclosure of solicitor-client privileged documents to the Commissioner constitutes a waiver of privilege with respect to any other person.

The absence fromFOIPP of any guidance on when and to what extent solicitor-client privilege may be set aside suggests that the legislature did not intendto pierce the privilege. [59] Overall, this does not mean that an applicant does not have recourse to other means to seek disclosure of documentsover which solicitor-client privilege is claimed. It is noteworthy that, in this case, the applicant had the opportunity to do so through thecourts in the context of the action she brought against the University.

In the course of that action, however, she did not make such arequest. [60] I agree with my colleague Justice Cromwell that parallel legislation may assist in the

interpretation of statutes. Butwords and phrases cannot be extricated from their specific statutory context and cross-applied automatically to other legislation. A closerlook at British Columbia’s Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 44(3), in comparison withthe statute at hand, demonstrates significant differences between the operational frameworks of the Alberta and British Columbiastatutes, including with respect to the powers of the Commissioner: The Alberta Statute Powers of Commissioner in conducting investigations or inquiries

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). The British Columbia Statute Powers of commissioner in conducting investigations, audits or inquiries 44

(1) For the purposes of conducting an investigation or an audit under

section 42 or an inquiry under

section 56 , the commissioner may make an order requiring a person to do either or both of the following: (

a) attend, in person or by electronic means, before the commissioner to answer questions on oath or affirmation, or in any other manner; (

b) produce for the commissioner a record in the custody or under the control of the person, including a record containing personal information.

(2) The commissioner may apply to the Supreme Court for an order (

a) directing a person to comply with an order made under subsection (1), or (

b) directing any directors and officers of a person to cause the person to comply with an order made under subsection (1).

(2.1) If a person discloses a record that is subject to solicitor client privilege to the commissioner at the request of the commissioner, or under subsection (1), the solicitor client privilege of the record is not affected by the disclosure.

(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). [ 61 ] Unlike the legislation at hand, s. 44 of the British Columbia Act does not give the Commissioner broad powers to compel the production of records. Significantly, the British Columbia Commissioner does not have all the “ powers, privileges and immunities of a commissioner under the Public Inquiries Act ”.

Instead, under s. 44(2) of the British Columbia statute, much of that power resides in a court of inherent jurisdiction — the traditional arbiter of solicitor-client privilege.

Consequently, it is difficult to conceive a reading of s. 44(3) of the British Columbia Act that would ascribe to the British Columbia Commissioner the type of power the appellant Commissioner here purports to have without rendering s. 44(2) of the British Columbia statute nugatory. [ 62 ] Further, nowhere in the British Columbia statute does the legislator reference “legal privilege” or the fact that solicitor-client privilege is a legal privilege.

The interpretative conflict that is at the heart of this case therefore does not arise in the context of the British Columbia Act. [ 63 ] The modern approach to statutory

interpretation requires legislative texts to be read in their entire context. And resort to other texts from different jurisdictions may be helpful in determining what that entire context is. But resort to parallel legislation does not trump other principles of statutory

interpretation. Certainly, it would not trump the principle, explained at para. 53 above, that legislatures are presumed to use expressions consistently within an enactment. Indeed, as Professor Sullivan writes, “[o]bviously, the

statutes of different jurisdictions cannot be regarded as constituting a single enactment” (§13.42). [ 64 ] In my view, that resort must be made to an anterior provision of the British Columbia Act, s. 44(2), to shed light on the meaning of the phrase “privilege of the law evidence” appearing in s. 44(3) of that Act, hurts, rather than helps, the argument that this phrase is sufficiently clear, explicit and unequivocal to capture solicitor-client privilege. Indeed, if it were so clear, explicit and unequivocal, then s. 44(2.1) would be rendered largely meaningless.

Moreover, that this anterior provision vests much of the production power in a court — as opposed to a commissioner with powers equivalent to those existing under the Public Inquiries Act — in a manner consistent with legislative respect for fundamental values, also militates against the appellant Commissioner’s desired

interpretation in the case at hand.

In fact, the very same contextual considerations operate against the appellant Commissioner in the case before us: an anterior provision, s. 27(1), explicitly permits a public body to refuse to produce documents covered by solicitor-client privilege with reference to the distinct concept of “legal privilege”, and the fact that the Commissioner need never ask a court to compel production of privileged documents would be inconsistent with the presumption of legislative respect for fundamental values. [ 65 ] Therefore, assuming — without deciding — that, even if the phrase “privilege of the law of evidence” would be understood to include solicitor-client privilege once it is coloured by the relevant contextual considerations arising from the framework of the British Columbia Act, it cannot, so coloured, be imported into the Alberta statute with equivalent effect. [ 66 ] I conclude this

section in saying a word about the strict construction approach adopted by the Court of Appeal. While its approach bears some similarity with mine, I am not prepared, given the reasons expressed above, to say that Blood Tribe ousts the modern approach to statutory

interpretation.

(4) Even if There Was Clear and Unambiguous Legislative Intent, This Was Not an Appropriate Case in Which to Order Disclosure [ 67 ] Lastly, even if the language of s. 56(3) did clearly evince legislative intent to set aside solicitor-client privilege, I would find that this was not an appropriate case in which to order production to the Commissioner. [ 68 ] The Commissioner argues she has an adjudicative function akin to that of a superior court, to determine whether a public body has validly claimed solicitor-client privilege.

As this Court found in Blood Tribe , however, even courts will decline to review solicitor-client documents to ensure the privilege is properly asserted unless there is evidence or argument establishing the necessity of doing so to fairly decide the issue (para. 17, citing Ansell Canada Inc. v. Ions World Corp. (1998), 28 C.P.C. (4th) 60 (Ont. Ct. (Gen. Div.)), at para. 20). [ 69 ] The delegate found that because the University failed to present evidence of its claim of solicitor-client privilege as required by the Protocol, it was necessary for the delegate to review the records.

However, the Protocol is not law, and was not enacted by the legislature. Rather, it is a guide established by the Commissioner to assist adjudicators and public bodies. [ 70 ] At the time of the Commissioner’s request for disclosure, the prevailing authority in Alberta in civil litigation allowed a party to bundle and identify solicitor-client privileged documents by document numbers, as the University had done (see Dorchak v. Krupka , 1997 ABCA 89 , 196 A.R. 81). No evidence or argument was made to suggest that solicitor-client privilege had been falsely claimed by the University.

In these circumstances, the delegate erred in concluding that the claim needed to be reviewed to fairly decide the issue. VII. Conclusion [ 71 ] Subject to constitutional limitations, legislatures can pierce solicitor-client privilege by statute. However, the language of the provision must be explicit and evince a clear and unambiguous legislative intent to do so. In the present case, there is no such language. For the above reasons, I would dismiss the appeal and award costs to the Board of Governors of the University of Calgary throughout. The following are the reasons delivered by Cromwell J. — I.

Introduction [ 72 ] I agree with my colleague Justice Côté that the appeal must be dismissed. But I do not agree that, under Alberta’s Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 (“ FOIPP ”), the Information and Privacy Commissioner lacks the authority to compel production for review of records over which solicitor-client privilege is asserted. The Commissioner has the authority to order a public body to produce for review any record required by the Commissioner “[d]espite . . . any privilege of the law of evidence”: s. 56(3).

This, in my view, is an explicit legislative grant of power which should be respected, not evaded. [ 73 ] Whatever other principles and presumptions of statutory

interpretation are engaged, statutory

interpretation must be anchored in the words chosen by the legislature read in their full context. In my respectful view, to hold as my colleague Justice Côté would that solicitor-client privilege is a “legal privilege” but not a “privilege of the law of evidence” in FOIPP is not justified by the text or context of the legislation or by the principle of

interpretation that the legislature must use clear language to authorize any abrogation of solicitor-client privilege. Rather, the words of the enactment, read in context, evince a clear intention to permit the Commissioner, subject to judicial review, to order production for inspection of records over which solicitor-client privilege is claimed. To hold otherwise abandons the modern approach to statutory

interpretation repeatedly endorsed by the Court and, under the guise of “restrictive”

interpretation, undermines legislative policy choices which, absent constitutional constraint, legislatures are entitled to make. II. Issues

[74] There are three questions for decision: 1. What is the appropriate standard of review? 2. Does FOIPP abrogate solicitor-client privilege? 3. Did the Commissioner’s delegate make a reviewable error in ordering production? III. Analysis A. What Is the Appropriate Standard of Review? [75] For the purposes of my reasons, I will assume without deciding that the correctness standard of review applies to thequestion of whether the Commissioner may order production of a record over which solicitor-client privilege is claimed in order todetermine whether the claim of privilege is well founded. B. Does FOIPP Abrogate Solicitor-Client Privilege?

(1) Introduction [76] In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, thisCourt held that “legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpretedrestrictively”: para. 11. Solicitor-client privilege cannot be “abrogated by inference” and “[o]pen-textured language governingproduction of documents will be read not to include solicitor-client documents”: para. 11 (emphasis in original); see also Canada(National Revenue) v.

Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at paras. 23-25. [77] While this, of course, is an important holding, we must note that what was in issue in Blood Tribe has virtuallynothing in common with this appeal.

The contention in Blood Tribe was that the Privacy Commissioner, by virtue of general languageauthorizing the production of records, had routine access to privileged material even when privilege was properly claimed: paras. 16-17.That is the context in which the Court held that broad language must be read restrictively and that open-textured production powersshould not be read as permitting production of privileged material.

The Court expressly accepted the submission of the Attorney Generalof Canada that the ordinary and grammatical meaning of the words, taken in their full and proper context, did not support the PrivacyCommissioner’s position in that case: para. 26. Moreover, the Court noted that, in contrast to the Privacy Commissioner’s powers underthe federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), which were in issue in BloodTribe, the Privacy Act, R.S.C. 1985, c. P-21, used “explicit language granting access to confidences”: para. 28.

The Privacy Act languagewas, in relevant respects, identical to the language in the Alberta statute before us in this case: the Privacy Act authorized the PrivacyCommissioner to examine any information “[n]otwithstanding . . . any privilege under the law of evidence” s. 34(2)). [78] When applying presumptions of legislative intent, we do not abandon the modern approach to statutoryinterpretation to which the Court has been for so long and so consistently committed.

Consequently, determining whether the legislaturehas expressed with sufficient clarity the intent to rebut a presumption of legislative intent requires the application of the modern approachto statutory

interpretation. By focusing the analysis on the modern approach to statutory

interpretation to determine if the legislatureintended to displace a presumption, one broadens the inquiry from a focus on the plain meaning of the text to one that considers theentire context in which the words of the statute find themselves. General language in relation to production, as required by Blood Tribe,will be read restrictively to exclude abrogation by inference.

But the “modern” approach is used to determine whether the statutory text,read in its full context, evinces with the required clarity the intention to abrogate privilege. [79] In my opinion, the legislature expressly provided for the abrogation of solicitor-client privilege in s. 56(3) ofFOIPP by authorizing the Commissioner to order production of records over which solicitor-client privilege is asserted in order todetermine whether the claim is well founded. This is apparent on the grammatical and ordinary meaning of the words “any privilege ofthe law of evidence”. This

interpretation is also supported by the contextual factors that are to be considered in statutory

interpretationpursuant to Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. This conclusion is, in my respectful view, fullyconsistent with Blood Tribe: this

interpretation does not abrogate privilege by inference, but with unmistakable clarity by virtue ofexpress legislative direction.

(2) Grammatical and Ordinary Meaning of “Any Privilege of the Law of Evidence” [80] Section 56(3) reads:

(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 daysany record or a copy of any record required under subsection (1) or (2). [81] The respondent argues that “any privilege of the law of evidence” does not include solicitor-client privilegebecause solicitor-client privilege is not simply an evidential privilege, but also a substantive rule of law.

While I, of course, agree thatsolicitor-client privilege has become a substantive — indeed, a constitutional — principle, it is also an evidentiary privilege captured bythe statutory words in this context. Moreover, as I explain, what is at issue here is the evidentiary component of solicitor-client privilege. [82] This Court has found that solicitor-client privilege is both an evidentiary privilege and a substantive principle.In Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, Arbour J. explained that “[s]olicitor-client privilege is a rule of evidence”: para. 49.

Similarly, in Foster Wheeler Power Co. v. Société intermunicipale de gestion etd’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456, the Court observe

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