August 2010

On April 20, 2010, the Federal Court ruled in Air Canada's favour when it found that the airline was not required to fulfil the Privacy Commissioner of Canada's request to produce an affidavit identifying the reasons why documents containing personal information on a passenger involved in an in-flight incident should be considered privileged under solicitor-client and litigation privileges. The decision has not been appealed.

Marc-André Fabien and Karine Joizil of Fasken Martineau were counsel to Air Canada in these proceedings. David Rheault, In-house Counsel with Air Canada, also appeared before the Federal Court.

The Facts

The incident being disputed occurred on May 26, 2005. During Air Canada Jazz Flight AC-8193 from Kamloops to Vancouver, a flight attendant observed two passengers consuming beer that had not been served to them by airline personnel, behaviour that is prohibited under the Canadian Aviation Regulations.[1] At the flight attendant's request, the two passengers surrendered their drinks, but one of the passengers took offense, giving rise to heated discussions between the passenger and the flight attendant. Upon arrival at the Vancouver airport, the passenger was greeted on the tarmac by RCMP officers and an Air Canada customer service representative. No charges were laid.

The very next day, the passenger filed a complaint with Air Canada's president and CEO, holding the company liable for the poor treatment he purported to have received. Protracted correspondence between Air Canada and the passenger ensued, during which the passenger, in an effort to support his version of the facts, requested access to reports describing his role in the incident. Air Canada withheld the documents, citing solicitor-client and litigation privileges, exceptions provided for in the Personal Information Protection and Electronic Documents Act (PIPEDA).[2]

On March 5, 2007, the passenger filed a complaint against Air Canada with the Privacy Commissioner. The Commissioner demanded that Air Canada produce an affidavit explaining the reasons for its refusal to produce the documents in question. Citing the Federal Court of Appeal decision in Blood Tribe,[3] later upheld by the Supreme Court of Canada,[4] Air Canada argued that it was under no obligation to prove the merits of its claims regarding the privileged nature of these documents.

With the passenger's consent, the Privacy Commissioner requested a hearing before the Federal Court under section 15 of PIPEDA. The Commissioner sought a declaration that she was entitled to require Air Canada to produce an affidavit, and a ruling as to whether or not the documents were privileged and on the appropriateness of awarding damages to the individual in question.

The Decision

Commissioner not entitled to require an affidavit

The Commissioner argued before the Federal Court that section 12 of PIPEDA grants her broad powers, including the power to summon witnesses and compel them to give written evidence or produce any records and information that she considers necessary to investigate a complaint, and the power entitling her to demand that Air Canada justify by affidavit under what criteria the requested documents were privileged. Yet just months earlier, the Supreme Court of Canada had found in Blood Tribe that the Commissioner does not hold the power to order the production of documents claimed to be privileged; it is the courts, rather than the Commissioner, who hold the power to rule on assertion of privilege.

Basing itself on this decision, the Federal Court dismissed the Commissioner's claims. Judge Harrington found that, with no jurisdiction to determine whether the assertion of privilege is justified, the Commissioner "could not stipulate the steps Air Canada had to take to satisfy her that the documents were truly privileged,"[5] in other words, to require the production of an affidavit supporting the airline's claims. The judge was careful to point out that the Privacy Commissioner is not completely without means; her right to seek redress before the courts does prompt organizations to consider the cost consequences of court proceedings and think twice before refusing access to requested documents.

The privileged nature of the documents

The Federal Court established that it was dealing with a case of solicitor-client privilege and litigation privilege, two fundamental notions distinguished by the Supreme Court in Blank.[6]

Air Canada asserted privilege over five documents: (1) the initial incident report by the flight attendant, (2) a report from a customer service representative, (3) the follow-up on the initial report, (4) the report from the captain of the aircraft, and (5) a statement from a witness. All but one of these documents were deemed to be protected by solicitor-client privilege and/or by litigation privilege. Air Canada's decision not to disclose their contents was therefore grounded.

(1)  According to the Court, even though the initial incident report was prepared by the flight attendant in the ordinary course of business, it can be considered privileged because it was produced in the context of anticipated litigation and there was a reasonable prospect of such litigation. Indeed, the flight attendant had reason to believe that, having transgressed the Canadian Aviation Regulations, the passenger had exposed himself to legal proceedings, hence his decision to include the name of a witness in his report, a choice also based on his recognition that a complaint might be filed against him as well. The judge found the report to be subject to both solicitor-client and litigation privileges.

(2)  As for the customer service representative's report, the Court found that it had not been prepared with the objective of being given to a lawyer, and that it was clear at the time of writing that no charges were going to be laid against the passenger; this report therefore had to be disclosed.

(3) (4)  Generated in response to the passenger's claim – taken by Air Canada as a threatened lawsuit – the follow-up on the initial report and the report from the aircraft's captain were coordinated by the legal department and are therefore protected by solicitor-client and litigation privileges.

(5)  As for the witness's statement, the Court found that it was still protected by litigation privilege due to the continued threat of a lawsuit against this passenger because she corroborated the flight attendant's version of the facts. 

The Federal Court then examined the Privacy Commissioner's claims aiming to circumscribe the limits of privilege. First, the judge ruled that the work of the paralegal involved in the case was subject to solicitor-client privilege as she was working under the overall supervision of a lawyer. Next, the Court deemed that the prospect of litigation was "reasonable" at the time the documents were prepared and that these documents are therefore protected by litigation privilege. Finally, the judge dismissed the Commissioner's allegation that Air Canada had waived privilege by discussing the facts of the incident in its correspondence with the involved individual, as this correspondence does not in fact contain any mention of legal advice. In addition, Air Canada is not required to disclose the results of its investigations other than in court proceedings.

No damages awarded

The Commissioner was seeking damages of $5,000 to $10,000 for the passenger, who expressed concern that he might be prohibited from flying with other airlines. The Court dismissed Air Canada's motion to strike the affidavit of a Commission analyst regarding the risks of passenger information collecting and "no-fly" programs. Nonetheless, it found no reason to award damages, as the matter ultimately boils down to simple disagreement.

The Court awarded costs in Air Canada's favour.

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[1] SOR/96-433.

[2] Personal Information Protection and Electronic Documents Act, 2000, c. 5, P-8.6 [Assented to April 13, 2000]. This act applies primarily to companies under federal jurisdiction, such as airlines. Section 9(3)(a) stipulates: "Despite the note that accompanies clause 4.9 of Schedule 1, an organization is not required to give access to personal information only if (a) the information is protected by solicitor-client privilege." Section 4.9 of the principles set out in Schedule 1 to PIPEDA states: "In certain situations, an organization may not be able to provide access to all the personal information it holds about an individual. […] Exceptions may include […] information that is subject to solicitor-client or litigation privilege."

[3] Blood Tribe Department of Health v. Privacy Commissioner of Canada (2006 FCA 334), October 18, 2006.

[4] Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, 2008 SCC 44, July 18, 2008.

[5] Section 17.

[6] Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, September 8, 2006.