Information & Ethics committee  May I interject, Mr. Chairman?

Information & Ethics committee  I'd like to take you to tab 4 of our materials, which was the transcript, so there's a little déjà vu here. It's at tab 4, page 4, in both the English and French versions, towards the bottom of the page. We don't disagree--which is a roundabout way of saying we pretty much agree--that there should be a duty to notify.

Information & Ethics committee  I will be brief in my comments, but if I may.... I know that's an oxymoron—a brief lawyer—but I'll do it.

Information & Ethics committee  Thank you. I agree with you. I think that when you have an omnibus statute like this that purports to deal with a single-person enterprise in an insurance company--because it does apply to all commercial enterprise--I think it's very challenging, if not impossible, to have it work effectively.

Information & Ethics committee  It was the Federal Court, Trial Division, that said, “Sure, Commissioner, you're right, you interpreted your powers correctly and you may require production of solicitor-client privilege documents”, which was a finding that is really quite inconsistent with the common law—

Information & Ethics committee  —and the Supreme Court of Canada. It was appealed to the Federal Court of Appeal. The Federal Court of Appeal is the decision at tab 8, which you have. My understanding, from the transcript of when the commissioner appeared, is that the Privacy Commissioner has sought leave to appeal this decision to the Supreme Court of Canada.

Information & Ethics committee  That's correct.

Information & Ethics committee  Sure.

Information & Ethics committee  My apologies.

Information & Ethics committee  Certainly. I apologize for that, but it will be a relief that I'm not quoting any more from case law.

Information & Ethics committee  That's okay. It's a good thing I have written remarks. I was just talking about the difficulty in the insurance context, because very often requests are made during the litigation process for privileged documents. With respect, we submit that it was highly unlikely that Parliament intended an interpretation of PIPEDA that would permit the circumvention of privilege in this manner.

Information & Ethics committee  I'm sorry. That's in paragraph 14 on page 6 of tab 8, so just near the bottom.

Information & Ethics committee  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.

Information & Ethics committee  Thank you. The discussion of solicitor–client privilege in this PIPEDA context was focused very recently by the Federal Court of Appeal decision in Blood Tribe, which was given in October 2006. You'll find it at tab 8 of our material. I know this is a heavy booklet, but we thought it would be convenient to have everything in one place.