Case: Newfoundland and Labrador (Information and Privacy Commissioner) v Newfoundland and Labrador (Justice and Public Safety), 2023 NLCA 27 (CanLII)
Keywords: solicitor-client privilege; privileged records; Access to Information and Protection of Privacy Act, 2015, SNL 2015, c. A-1.2
The provincial Minister of Justice and Public Safety receives an access to information request seeking records related to a complaint about environmental violations. (See para. 2). The Minister refuses to disclose. In the Minister’s view, the records must be withheld pursuant to ss. 30(1)(a) and (b) of the Access to Information and Protection of Privacy Act, 2015, SNL 2015, c. A-1.2 (ATIPPA). (See para. 2).
The Information and Privacy Commissioner of Newfoundland and Labrador receives a complaint about the Minister’s refusal. A dispute then emerges between the Commissioner and the Minister. Following an exchange of correspondence, the Commissioner recommends that the Minister disclose “all of the records and other information withheld”. (See para. 7).
The Minister disagrees with that recommendation. In response, the Minister obtains a declaration by the Supreme Court of Newfoundland and Labrador (per MacDonald J.) that the Commissioner lacks authority to compel disclosure of solicitor-client records and that the Minister need not comply with the recommendation to disclose. (See para. 9).
The Commissioner appeals. The Court of Appeal (Butler, Knickle, and O’Brien JJ.A.) dismisses the appeal, concluding the Applications Judge did not err in finding the Commissioner lacked authority to compel production. (See paras. 95, 98).
This case showcases the immense value Canadian courts place on maintaining the integrity of solicitor-client privilege. The decision includes an interesting discussion on the constitutional dimensions of solicitor-client privilege and how it interacts with principles of fundamental justice and a person’s fundamental right to privacy. (See paras. 31, 91-92).
An earlier version of ATIPPA provided for a “general right for any requestor who was refused access to a record, to ask the Commissioner to review the decision” and that right of review “required a public body to produce” records notwithstanding “a privilege under the law of evidence”. (See para. 14).
That key phrase – “privilege under the law of evidence” – was also interpreted by the Court of Appeal herein to include solicitor-client privileged materials. (See para. 15; Newfoundland and Labrador (Attorney General) v. Information and Privacy Commissioner (Nfld. & Lab.), 2011 NLCA 69). Following that decision, there was an amendment to ATIPPA. As stated by the Court of Appeal, the Commissioner’s right to require that a record be produced in order to determine whether it was, in fact, subject to solicitor-client privilege was removed. (See para. 16; see also the Court’s comparison of relevant statutory language in Appendix I).
What, then, is the current state of ATIPPA? In 2015, the phrase “privilege under the law of evidence” returned. But something else had changed. The jurisprudence interpreting that phrase had itself evolved – the Supreme Court of Canada interpreted a similar phrase differently than the Court of Appeal had back in 2011. (See paras. 25, 28; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53).
As explained by the Supreme Court of Canada in Alberta, the phrase “privilege of the law of evidence”, albeit in the context of Alberta’s Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIPP), was
The Court of Appeal applied the correctness standard of review to determine whether the Applications Judge erred by interpretating ATIPPA in a manner consistent with the Alberta decision. (See para. 27). According to the Court of Appeal, the question in this case was “the same as it was in Calgary”. As a consequence, solicitor-client privilege was engaged “in its substantive context” and, as in Alberta, it “should not be interfered with unless absolutely necessary”. (See para. 34).
The Court engaged in a detailed comparison of ATIPPA and Alberta’s FOIPP; ultimately agreeing with the Application Judge that the language of ATIPPA was insufficiently clear, explicit and unequivocalto allow for an inference of legislative intent to “abrogate solicitor-client privilege”. (See paras. 38-49). For the Court of Appeal, ATIPPA provided “no legislative safeguards whatsoever respecting disclosure of solicitor-client privileged records that the Commissioner has not examined, to an applicant”. (See para. 61, emphasis in original). For this reason, the Court of Appeal was unconvinced that disclosure would not result in a compromise to solicitor-client privilege as a substantive right. (See para. 62; Alberta at para. 58).
The Court of Appeal accepted that prior versions of ATIPPA were relevant to the interpretation of the contemporary draft. (See para. 79). However, importantly, the Court stated that the focus of the exercise is to determine “the meaning of the various sections, not what was said about them prior to their enactment”. (See para. 80). In this case, even though the evidence of legislative history “supports the intent of the legislature to restore the Commissioner’s authority to compel production of solicitor-client records for his review”, that fact did not displace the Court of Appeal’s current interpretation of the statute (i.e. that the relevant language of ATIPPA does not meet the standard established in Alberta to “abrogate solicitor-client privilege as a substantive right”). (See paras. 81-82).
Finally, the Court of Appeal did not agree with the Commissioner’s position on the application of the doctrine of contemporanea expositio to ATIPPA. (See paras. 85-93). As quoted by the Supreme Court of Canada in Perka v. The Queen, 1984 CanLII 23 (SCC), the doctrine states that “[t]he words of an Act will generally be understood in the sense which they bore when it was passed”. (See para. 83; Perka at pp. 264-265). Here, the Commissioner asserted that, applying the doctrine, the Court of Appeal was bound to interpret ATIPPA as it had back in 2011 – in other words, to include solicitor-client privileged documents in the phrase “privilege under the law of evidence”. (See para. 84). However, for the Court of Appeal, it was not appropriate to apply the doctrine because, among other reasons, the “application of the contemporanea expositio doctrine to the interpretation of the impugned sections of ATIPPA 2015 would be inconsistent with the constitutional dimensions of solicitor-client privilege.” (See para. 92).
Ultimately, the Court of Appeal found no error in the Application Judge’s conclusion that the Commissioner lacked authority to compel production of documents over which the Minister asserted solicitor-client privilege and that the Minister did not need to comply with the Commissioner’s recommendations for disclosure to the applicant. (See para. 95). However, in light of the Court of Appeal’s emphasis on the lack of appropriate “safeguards” for disclosure, one wonders whether further amendments to ATIPPA or a differently drafted set of recommendations by the Commissioner might have reassured the Court that disclosure in these circumstances was possible?
Counsel for the Appellant: Andrew A. Fitzgerald K.C (Learmonth, Boulos & Fitzgerald, St. John’s)
Counsel for the First Respondent: David G. Rodgers and Chelsey Buggie (Dept. of Justice & Public Safety (NL), St. John’s)
Counsel for the Second Respondent: Aimee N. Rowe (Law Society of Newfoundland and Labrador, St. John’s)
Note: Supreme Advocacy LLP acknowledges the contribution of Mr. Dylan Challinor (3L, Lakehead) to this article.