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Positive Covenants Does Not Run With the Land

Tribunals Cannot Use Legislation to Obtain Documents Protected By Solicitor-Client Privilege Unless It Contains “Clear, Explicit and Unequivocal” Language.

In Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, the Supreme Court protected documents subject to solicitor-client privilege from being released under Section 53 of Alberta’s Freedom of Information and Protection of Privacy Act. In their decision the Supreme Court held that legislation cannot nullify solicitor client privilege without “clear, explicit and unequivocal” language.

This case centered over a Notice to Produce Records sent by the Information and Privacy Commission to the University of Calgary under the Alberta Freedom of Information and Protection of Privacy Act (FIPPA). This act requires public bodies to produce records to the Information and Privacy Commissioner on demand “despite any other enactment or any privilege of the law of evidence.”

The Supreme Court recognized that solicitor-client privilege represented a fundamental value and therefore required “clear, explicit and unequivocal language.” This test did not represent a return to the plain meaning rule but instead was grounded in the contextual approach that the modern Supreme Court used. The court then held that FIPPA did not meet this standard as the legislation had referred to solicitor client privilege in other sections of the document but specifically did not mention it in section 56(3). Moreover, the court held that if the legislature had intended to forego solicitor-client privilege it would have legislated safeguards as to when this privilege may be set aside.

This case further protects solicitor-client privilege. While legislation does not necessarily need to explicitly abrogate solicitor-client privilege it must clearly do so.

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