Supreme Court Affirms That Regulators Cannot Access Privileged Material

On July 17, 2008 the Supreme Court of Canada released its unanimous decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health. The Supreme Court upheld the Federal Court of Appeal's decision to vacate an order by the Privacy Commissioner compelling the production of purportedly privileged material so as to assess the privilege claim. This ruling reaffirms the sanctity of privilege and the Canadian judiciary's willingness to protect the doctrine from unnecessary or unfounded legislative erosion. More broadly, it represents a significant hurdle for administrative and regulatory bodies seeking to compel documentary production of privileged materials in the context of investigations or other administrative undertakings.