Letter to the Minister of Justice and President of the Treasury Board regarding the impact of the Supreme Court of Canada’s decision in Information and Privacy Commissioner of Alberta v. The Board of Governors of the University of Calgary on OIC investigations
The Honourable Scott Brison, P.C., M.P.
President of the Treasury Board of Canada
90 Elgin Street, 8th Floor
Ottawa ON K1A 0R5
The Honourable Jody Wilson-Raybould, P.C., M.P.
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, ON K1A 0H8
Re: Implications of the Supreme Court of Canada decisions in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 and Lizotte v. Aviva Insurance Company, 2016 SCC 52 for the application of the Access to Information Act
I am writing to you in your respective capacities as minister responsible for the administration of the access to information regime at the federal level and minister responsible for overseeing amendments to federal legislation.
I am concerned about the potential ramifications for the federal access to information regime of the Supreme Court of Canada’s recent decisions in both Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (University of Calgary) and Lizotte v. Aviva Insurance Company, 2016 SCC 52 (Lizotte). I will first address my concerns with the University of Calgary decision, before turning to Lizotte.
In University of Calgary, a majority of the Supreme Court determined that the Alberta Information and Privacy Commissioner is not empowered to order the production of records over which public institutions have claimed solicitor-client privilege. In my view, this decision, which was issued in relation to Alberta’s Freedom of Information and Protection of Privacy Act (FOIPP), does not displace the obligation of federal government institutions subject to the Access to Information Act (the Act) to provide the Office of the Information Commissioner (OIC) with records over which solicitor-client privilege is claimed.
The reasons articulated by the majority of the Supreme Court are silent with respect to the Act, which was passed more than a decade earlier than the Alberta legislation, before solicitor-client privilege had been fully recognized as a substantive legal rule. In my view, in granting the Information Commissioner the power to order the production of records notwithstanding any privilege under the law of evidence, Parliament intended to include solicitor-client privilege within the scope of this power.
This view is consistent with longstanding practice at the federal level. Over the course of the more than 30 years since the enactment of the Act, federal government institutions have been providing records over which the solicitor-client privilege exemption has been claimed to the OIC so that it can verify that this privilege has been properly asserted. In addition, the Attorney General of Canada elected not to intervene before the Supreme Court in relation to these proceedings. Taken together, these considerations reflect the clear understanding at the federal level that the Act entitles the Information Commissioner to review records over which the solicitor-client exemption has been claimed.
Accordingly, the OIC will continue to proceed on the basis that it has the power to review and order the production of records in respect of which government institutions subject to the Act have claimed the exemption for solicitor-client privilege. I will also expect institutions to continue to provide such records to the OIC.
To proceed otherwise would be tantamount to transforming the exemption for solicitor-client privileged records into an exclusion, effectively requiring that such records be treated in a manner akin to Cabinet confidences. In my view, such an approach cannot be reconciled with either the fundamental purposes of the Act, which include ensuring effective, independent oversight of government decision-making with respect to the disclosure of government information, or longstanding practice at the federal level.
Similarly, the OIC’s investigation practices will remain unchanged following the Supreme Court’s decision in Lizotte, which determined that clear, explicit and unequivocal language is required to lift litigation privilege. Although the Supreme Court recognized litigation privilege as a common law class privilege that is a fundamental principle of the administration of justice and central to the justice system, it did not refer to this privilege as anything other than a privilege under the law of evidence. In my view, the language of the Act, which allows the Information Commissioner to examine any record to which the Act applies notwithstanding any privilege under the law of evidence, is sufficiently clear to apply to litigation privilege.
In order to avoid any uncertainty, I would ask that you clearly instruct all ministers and ministerial staff members, including your own, as well as the public servants in all of the government institutions for which you and your fellow ministers are collectively responsible that they continue to be obliged to provide the OIC with all records to which the Act applies, including any records in respect of which either solicitor-client privilege or litigation privilege is claimed as an exemption.
For even greater certainty, I would ask that the Act be amended as part of Phase I of the ongoing legislative review to include language that states a clear and unambiguous legislative intent that the Information Commissioner’s investigative powers, including her power to compel institutions to produce records, apply to records over which the exemption for solicitor-client privilege has been claimed.
Please do not hesitate to contact me directly in the event that you wish to further discuss this matter.
Information Commissioner of Canada
cc. Yaprak Baltacioğlu, Secretary of the Treasury Board of Canada
William F. Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada