|
Judicial Review - SOR - Exceptions - Evidentiary Privilege. LifeLabs LP v. Information and Privacy Commr. (Ontario)
In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2024) the Divisional Court dismisses a JR from an Ontario Privacy Commissioner's interlocutory order during an investigation which ruled against the applicant's privilege claims.
Here the court rules on the JR SOR for solicitor-client and litigation privilege, which it finds to be correctness:Solicitor-client Privilege and Litigation Privilege: Standard of Correctness
[38] The parties do not agree on the standard of review for the issues of privilege. LifeLabs submits that the standard is correctness. The ON IPC submits that the court should apply a standard of reasonableness to the application of the law of privilege to the facts in the Privilege Decision, and correctness only to the “identification and articulation” of the legal tests for solicitor-client privilege and litigation privilege.
[39] I find that the issues of privilege in this application should be reviewed on a standard of correctness, based on the principles articulated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[40] The presumptive standard of review on judicial review is reasonableness: Vavilov, at para. 30.
[41] The reasonableness standard can be rebutted in certain circumstances, including where the legislature has indicated that a different standard should apply, or where the rule of law requires courts to apply the standard of correctness to certain legal questions: Vavilov at paras. 53 and 59. These include “general questions of law of central importance to the legal system as a whole” such as the question of whether [a] statute provided uniform protection in instances of claims of solicitor-client privilege: see Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at para. 20.
[42] The ON IPC relies on two cases in support of its position. The first is a decision of the Divisional Court involving the ON IPC and whether privilege justified it refusing, to produce information under a freedom of information request. The ON IPC’s decision on that point was reviewed on a standard of reasonableness: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2016 ONSC 6913, at para. 9 (“Ontario v. Ontario”).
[43] I would not apply the reasoning in Ontario v. Ontario because that decision pre-dates Vavilov. The court applied the principles from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and considered the expertise of the administrative tribunal in interpreting its home statute.
[44] Vavilov altered the relationship between tribunal expertise and case-by-case determinations of standards of review. It folded expertise into the presumption of reasonableness as the starting point for standard of review. Vavilov rejected using expertise to consider whether a given case involves a general question of law of such importance that the correctness standard should apply. Further, given these changes to the law of standard of review, the Supreme Court cautioned that prior decisions should be “read carefully”: see Vavilov at para. 58. In accordance with that caution, I decline to apply the 2016 decision in Ontario v. Ontario to the question of standard of review in the case at bar.
[45] Post-Vavilov, the British Columbia Court of Appeal considered the standard of review in the context of an access to information request for material over which solicitor-client privilege was claimed: British Columbia (Attorney General) v. Canadian Constitution Foundation, 2020 BCCA 238 (“British Columbia v. CCF”). In that decision, which considered the same question raised here, Harris, J.A. reasoned at para. 38 that:The question, as I see the matter, engages the correct scope of a principle that is fundamental to the proper functioning of our legal system; a principle, the protection of which must be as near to absolute as possible. It is a question that, given its importance, calls for a uniform and consistent answer. The question is fundamentally about the scope of solicitor‑client privilege. Admittedly, it arises in the factual context of a question about whether solicitor‑client privilege attaches to a record disclosing the total sum spent on litigating a matter during a certain time period while the litigation is ongoing. But it remains a question about the proper scope of privilege. Moreover, the answer to that question has precedential value and a significant impact on the administration of justice as a whole and other institutions of government. It goes far beyond the immediate interests of the parties in this case. Respect for the rule of law demands this Court ensure a single, correct answer is provided. The standard of correctness, in my opinion, continues to apply.
[46] This reasoning is aligned with the logic in Chagnon v. Syndicat de la function public et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687. Harris, J.A. observed that the Supreme Court had “no difficulty” applying a correctness standard to the question of privilege in Chagnon: see British Columbia (Attorney General) v. CCF, at para. 44.
....
[55] The nature and scope of solicitor-client privilege is a question of fundamental importance: Vavilov, at para. 60. The issues on this application involve the scope of solicitor-client privilege and/or litigation privilege to investigations under Ontario privacy legislation. In the case at bar, there are important questions of law and public interest involving the privacy of individual health data at stake, including whether the important principle of solicitor-client privilege is being respected or being asserted in a manner which impedes regulatory investigations into significant data breaches from cyber-attacks.
[56] While litigation privilege is a class privilege with conceptually distinct features from solicitor-client privilege, it nevertheless serves a “common cause”, being the secure and effective administration of justice according to law: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 31.
[57] Although there are differences between solicitor‑client privilege and litigation privilege, the Supreme Court of Canada has described litigation privilege as “central to the justice system both in Quebec and in the other provinces”: See Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 4.
[58] Solicitor-client privilege serves the rule of law. So does litigation privilege. In this case, litigation privilege, alongside solicitor-client privilege, are raised as a basis for a permanent order of non-publication on the findings of the ON IPC into a major data breach. The application of either or both privileges, or the denial of those privileges has broader implications. Canada is not unique in this regard—similar claims of privilege have arisen in other jurisdictions where there have been significant data breaches because of cyber-attacks, leading to regulatory investigations and civil proceedings.[3]
[59] For these reasons, I conclude that a standard of correctness is the appropriate standard of review for the identification and application of both solicitor-client privilege and litigation privilege in the Privilege Decision.
|
