Solicitor-Client Privilege in the Aftermath of Blood Tribe: The “Compelling” Question of Ordering Production of Privileged Records by Privacy Commissioners and Administrative Decision-Makers
Author(s): Katrina Haymond, Terri Susan Zurbrigg
Publication Date: November 2011
Format: PDF
Part of: 2011 - 12th Annual National Administrative Law and
Labour & Employment Law Conference:
Behind Closed Doors Full Binder
Description
This paper analyzes how the Supreme Court of Canada’s decision in Blood Tribe has been interpreted and applied in recent privacy law decisions and by other administrative decision-makers, , including labour arbitration boards, human rights commissions, and professional regulatory bodies. It also critically examines how the Privacy Commissioners of Alberta and British Columbia have responded to Blood Tribe through the adoption of specific practices and protocols for access to information requests where disclosure is refused on the basis of solicitor-client privilege1. In so doing, this paper examines whether the different statutory powers granted to the federal Privacy Commissioner and the Alberta and British Columbia Privacy Commissioners are capable of rendering Blood Tribe distinguishable. It also considers how Privacy Commissioners vested with statutory order-making powers should approach claims of solicitor-client privilege, and whether Privacy Commissioners are overstepping their jurisdiction by requiring that public bodies claiming solicitor-client privilege provide an affidavit that describes the nature of the documents over which privilege is claimed. |
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