Solicitor-Client Privilege Trumps Privacy Commissioner´s Investigatory Powers

Privacy and Access to Information

In a unanimous ruling issued on July 17, 2008, the Supreme Court of Canada confirmed that the Privacy Commissioner of Canada cannot order the production of documents over which a claim of solicitor-client privilege is asserted.¹ The Court ruled that the right of the individual or organization "to keep solicitor-client confidences confidential must prevail."

This decision clarifies the scope of the Commissioner's investigatory power. In short, the Personal Information Protection and Electronic Documents Act ("PIPEDA") does not grant the Commissioner authority to compel production of privileged documents, even for the limited purpose of determining whether privilege is properly claimed.