Supreme Court rules on Privacy Commissioner’s power to review privileged documents
Canadian Privacy Law Blog:
The Supreme Court of Canada has just handed down its decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, which was a question of whether the Privacy Commissioner could review documents to determine whether claims of privilege have been properly applied. The unanimous Court, on appeal from the Federal Court of Appeal, determined that she cannot.
From the headnote:
Privacy — Investigations of complaints — Powers of 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 Commissioner can compel production of privileged documents — Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 12.
Following her dismissal, an employee asked to have access to her personal employment information because she suspected that the employer had improperly collected inaccurate information and used it to discredit her before its board. The employer denied the request, and the employee filed a complaint with the Privacy Commissioner seeking access to her personal file. The Commissioner requested the records from the employer in broad terms. All records were provided except for those over which the employer claimed solicitor‑client privilege. The Commissioner then ordered production of the privileged documents pursuant to s. 12 of the Personal Information Protection and Electronic Documents Act (“PIPEDA”), which confers the powers to compel the production of any records “in the same manner and to the same extent as a superior court of record” and to “receive and accept any evidence and other information . . . whether or not it is or would be admissible in a court of law”. The employer applied for judicial review of the Commissioner’s decision. The reviewing judge determined the Commissioner…