So right at the bottom, it reads:
the recent approach used by the Supreme Court of Canada suggests that if Parliament wished to create a power to compel privileged documents then express language must be used.
If I can just refer you to page 8 of the same case, paragraph 22, about two-thirds of the way down, after going through all of the relevant case law, the summary comment states:
In short, the reason express language is required to abrogate solicitor-client privilege is because it is presumptively inviolate. The exception for solicitor-client privilege in PIPEDA is not what shelters privileged documents from disclosure. The law of privilege does that.
Ladies and gentlemen, solicitor-client privilege goes to the heart of the order and integrity of our system of justice. An individual or party in any proceeding must know with confidence that any communication with their solicitor will not be disclosed. This allows free and unthreatened communication between solicitor and client, which facilitates the preparation and execution of a full and vigorous defence.
The impact of qualifying solicitor-client privilege, which has anchored a common law tradition for centuries, would be seismic. Just to bring it home, I'd ask you to imagine the sudden and retroactive abrogation of executive privilege and the profound effect this would have on government. I suggest to you that the impact of the Privacy Commissioner's position regarding solicitor-client privilege would be no less dramatic.
It is of the utmost importance that power be clear and be interpreted clearly. It is of the utmost importance that the commissioner's discretion in interpreting powers be consistent with our legal practices and system.
The insurance industry receives many requests from plaintiffs' counsel. You've heard about this already from our friends from the IBC. Often when litigation is contemplated—sometimes after a claim has been filed—counsel seeks production under PIPEDA of documents to which they are not entitled under common law or pursuant to the rules of civil procedure. These documents are protected by either solicitor-client privilege, litigation privilege, or both.