Law Times

Law Times • January 23, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Privacy and Freedom of Information PROVINCIAL PRIVACY LEGISLATION Miscellaneous Commissioner could not compel production of records over which solicitor-client privilege asserted Solicitor-client privilege. In con- text of constructive dismissal claim, delegate of Information and Privacy Commissioner of Alberta ordered production of records over which University had claimed solicitor-client privi- lege. Delegate issued Notice of Inquiry instructing University to provide copy of records at issue or two copies of affidavit or un- sworn evidence verifying solici- tor-client privilege over records. University declined to provide copy of withheld records, and in- stead provided list of documents identified by page number only and affidavit indicating solicitor- client privilege had been asserted over records. Delegate issued No- tice to Produce Records under s. 56(3) of Freedom of Informa- tion and Protection of Privacy Act (FOIPP) requiring University to produce documents for review. University again did not com- ply, and sought judicial review of delegate's decision to issue the Notice to Produce Record. Appli- cation judge found that s. 56(3) of FOIPP permitted Commissioner to compel production of disputed records to verify claims of solici- tor-client privilege. Application judge also found that provisions of FOIPP did not work together effectively unless Commissioner had power to compel produc- tion of information over which privilege was alleged since FOIPP provided no other mechanism to review that type of claim. Appli- cation judge found that delegate had correctly issued notice, not- ing that University had refused to substantiate in any other way its claims of solicitor-client privi- lege. Court of Appeal allowed University's appeal, concluding that Commissioner did not have statutory authority to compel production of records over which solicitor-client privilege was as- serted. Commissioner appealed with Supreme Court of Canada. Appeal dismissed. Under FOIPP, solicitor-client privilege was no longer merely privilege of law of evidence, but substantive right that was fundamental to proper functioning of legal system. Dis- closure of documents pursuant to statutorily established access to information regime, separate from judicial proceeding, en- gaged solicitor-client privilege in its substantive, rather than evi- dentiary context. Reading s. 56(3) of FOIPP in context of statute as whole supported conclusion that legislature did not intend to set aside solicitor-client privilege. Alberta (Information and Privacy Commissioner) v. Uni- versity of Calgary (2016), 2016 CarswellAlta 2247, 2016 Car- swellAlta 2248, 2016 SCC 53, 2016 CSC 53, Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); affirmed (2015), 2015 CarswellAlta 574, 2015 ABCA 118, Patricia Rowbotham J.A., Myra Bielby J.A., and Russell Brown J.A. (Alta. C.A.). Federal Court of Appeal Administrative Law PREROGATIVE REMEDIES Prohibition Filing of notice of application was premature Applicant filed notice of appli- cation seeking stay of certain administrative proceedings before Canadian Transporta- tion Agency. Applicant did not ask agency to suspend proceedings, and instead re- lied on s. 50 of Federal Courts Act to come directly to court. This was ruling, as requested by registr y, on whether notice of application should be re- moved from court file and file ordered closed. Pursuant to authority under R. 74.1 of Fed- eral Court Rules, notice of ap- plication was ordered removed from court file and file was ordered closed. Applicant was actually seeking prohibition of administrative proceedings, so standards had to be same. Prohibition was administra- tive law remedy not to be pur- sued where there was adequate alternative remedy and lack of extraordinar y circumstances or unusual urgency, so same requirements applied here. Canadian Transportation Act gave agency full power over its proceedings, including de- termining whether to suspend or adjourn proceedings. To al- low applicant to bypass agency and go directly to court would offend statutor y scheme. No- tice of application revealed no unusual urgency or excep- tional reason that immediate access to court was necessar y. Filing of notice of application was premature and thus con- trar y to Canada Transporta- tion Act. Decision was without prejudice to applicant's abil- ity to bring motion for stay of pending appeal of interlocu- tor y decision for which appli- cant had applied for leave to appeal. Canadian National Rail- way v. BNSF Railway (2016), 2016 CarswellNat 5738, 2016 FCA 284, David Stratas J.A. (F.C.A.). Environmental Law STATUTORY PROTECTION OF ENVIRONMENT Miscellaneous Trial judge properly considered applicability of privilege Parties were involved in pro- ceedings under Environmen- tal Protection Act, 1999. Infor- mant in proceedings sought protection of identity under s. 16(2) of Act. At hearing re- garding production, order is- sued which exempted from disclosure any information that might reasonably identif y person who applied for inves- tigation. Numbered company appealed. Appeal dismissed. Trial judge properly consid- ered issue of applicability of privilege. Federal Court did not effectively read class privi- lege of s. 16 into scheme of s. 17 to 21 of Act. Person who believes that investigation should be initiated under s. 17 of Act may also require and re- quest protections afforded by section 16. 876947 Ontario Ltd. v. Can- ada (Attorney General) (2016), 2016 CarswellNat 5708, 2016 FCA 270, 2016 FC 432, Eleanor R. Dawson J.A., Near J.A., and Woods J.A. (F.C.A.). Human Rights PRACTICE AND PROCEDURE Judicial review Federal Court did not apply reasonableness standard correctly Complainant suffered work- related stress and depression after "blowing whistle" on and eventually settling civil suit against employer. Complain- ant later passed written exam in competition for position with federal agency, TC, pro- viding references, including that of former supervisor, to selection board. Complainant disclosed settlement of lawsuit and medical conditions to se- lection panel. Panel member, L, gave complainant failing grade on "detail-oriented" criterion based on former supervisor's assessment. Canadian Human Rights Tribunal determined that TC indirectly or uninten- tionally discriminated against complainant when it declined to find that performance ap- praisals and other documents complainant tendered were suf- ficient proof that he satisfied de- tail-oriented criterion. Federal Court set aside Tribunal's deci- sion, stating that it was conduct- ing reasonableness review, that it disagreed with Tribunal that it was problematic for panel to penalize complainant for lack of references as there had been no change in its references policy after complainant disclosed his disability, and thus there was no evidence of discriminatory conduct, and found that because complainant's documentation in lieu of references did not "self- evidently" illustrate that he met attention-to-detail criterion, it was inappropriate for Tribunal to substitute its own conclusion for that of panel on that point. Complainant appealed. Appeal allowed. Federal Court did not apply reasonableness standard correctly. In re-weighing and effectively re-deciding case, Fed- eral Court was much too inter- ventionist. There was more than ample evidence to support Tri- bunal's key conclusions. There was ample evidence that L gave complainant failing grade on detail-oriented criterion after complainant revealed disability, ignored evidence that employer altered document favorable to CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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