Judge orders Alberta privacy commissioner office to pay costs in FOIP battle

An Alberta Court of Queen’s Bench justice has ordered the Office of the Privacy and Information Commissioner to pay costs in the latest round of a years-long legal battle over an information request.

'The commissioner's conduct is deserving of sanction'

Information commissioner Jill Clayton's office has been ordered to pay legal costs to the University of Calgary. (Sam Martin/CBC)

An Alberta Court of Queen's Bench justice has ordered the Office of the Privacy and Information Commissioner to pay costs in the latest round of a years-long legal battle over an information request.

Justice Karen M. Horner found Alberta's privacy commissioner Jill Clayton had acted as "a strong partisan advocate," outside her role of neutral speaker on jurisdictional matters.

"The commissioner's conduct, in continuing to review the issue of solicitor-privilege over the university's records after the very clear language of no less than three judges of the Supreme Court, is deserving of sanction," Horner wrote in her decision.

The costs were set between $75,000 and $200,000, according to court ruling parameters. A spokesperson for the privacy commissioner said the final cost has not yet been provided by the university.

The ruling stems from a 2009 freedom of information (FOIP) request by a former University of Calgary employee for documents relating to their termination.

Although that lawsuit was settled in 2012, the issue of solicitor-client privilege claimed by the university in withholding certain records spun into almost a decade of court battles involving the privacy commissioner's office.

The university contested a 2017 order from the privacy commissioner's office to provide records that would feasibly not be covered by the privilege.

In October, Horner awarded costs to the university.

The beginning

In 2008, a former university employee filed an access to information request for records around the same time she was suing the university for wrongful dismissal.

The university claimed solicitor-client privilege over records from communications with its in-house and external lawyers. In 2009, the former employee asked the commissioner's office — headed by Frank Work at the time — to start an inquiry.

The office sought further information in support of the privilege claim.The university subsequently refused to allow the office to review records to determine if privilege had been properly applied.

In 2010, the university applied for judicial review contesting the commissioner's authority — the court initially dismissed the application but it was upheld on appeal. 

The case made its way to the country's top court, which in 2016 ruled that FOIP did not give the commissioner's office power to compel the university to produce records which it had claimed privilege over.

2017 order

But the commissioner's office re-ignited the case shortly after the Supreme Court decision by interpreting the ruling did not address the validity of the privilege claim.

It was followed by an order to determine whether the university had properly withheld certain records, namely communications between the university and in-house counsel before the lawsuit had been anticipated.

The university once again brought the order for judicial review. In her decision, Horner took the view that the office's interpretation was unreasonable and that the commissioner had been an active participant in proceedings.

"For this reason, she cannot escape the cost consequences associated with taking on such an adversarial role," Horner wrote.

Clayton has served as the privacy and information commissioner since 2012. This summer she told legislative representatives she would not seek re-appointment for a third term, her office said.

The legislature passed a motion in November to begin the process of finding the next commissioner.