On the part of private and public organizations, the decision would empower them to categorically claim the privilege in case the Commissioner would demand production of necessary documents. Through the decision, it has been implied that the Commissioner cannot compel the production of the documents even for the purpose of determining the reasonable ground for the claim. With this decision, the organizations or employers can, then, effectively refuse and not heed the order of the Commissioner by merely stating the privilege.
This situation would make the Commissioner futile and unable to fulfil her duties because the court would always prioritize the privilege. Besides, the organizations would always tend to go to courts to challenge the order of the Commissioner. Noticeably, if the case could have been resolved under the Freedom of Information and Protection of Privacy Act (FOIPOP), the result could have been different. Meanwhile, the FOIPOP is:
A single Act that deals with both your right to obtain information from public bodies and local public bodies and your right to have personal information held by a public or local public body in the province of Nova Scotia protected from use and disclosure. The FOIPOP acknowledges the right of every individual to obtain personal information which they have provided with any public entity. The act applies in the case because the organization is a public entity.
If the case could have been heard in the context of the FOIPOP, the organization could have not resisted from producing the documents because it cannot claim the privilege. Significantly, when information is given to the government, the privilege is waived. Hence, the Commissioner could have successfully compelled the organization to produce the said document if only FOIPOP Act has been applied. Conclusion For mane centuries ago, the right of privacy of citizens and the privileged communication has been recognized as a necessary exercise of freedom in the society.
Through times, the privilege has been inculcated in the Constitution because of its necessity in the administration of justice. Such privilege, however, should be supported by justifiable grounds. On the other hand, laws and entity have been created to aid in the effective administration of justice. Specifically, the Privacy Commissioner has been granted with power necessary to fulfil her task to settle conflicting rights created by laws. Such task, however, is an extensive, arduous, and complicated.
As such, the laws have empowered her with discretion and authority to review necessary documents. The Commissioner, then, is given a quasi-judicial function. Surprisingly, these necessary powers have been removed from her by the court in its recent decision. In addition, it also dismantled the Commissioner from exercising her discretion. Significantly, the decision has created a doubt as to her credibility in making decision. Hence, the decision has effectively made the function of the Commissioner futile.
Barbara A. McIsaac. “Privacy Commissioner’s Powers Do Not Extend to Inspecting or Compelling Production of Solicitor-Client Privileged Records. ” McCarthy Tetrault. 2008. 26 Nov. 2008 < http://www. mccarthy. ca/article_detail. aspx? id=4204>. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 Charnetski, William Alexander, Flaherty, Patrick Daniel, Canada, and Robinson, Jeremy Patrick. “The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide. ” Canada Law Book [Aurora] 2001.