10.31: Court-ordered costs award

Case Summary

Justice Horner conducted a Judicial Review of a Delegate of the Information and Privacy Commissioner’s decision regarding potentially privileged documents that the University of Calgary had refused to disclose.

The Supreme Court of Canada previously rendered a Decision that the University of Calgary’s evidence of Solicitor-Client Privilege met all the requirements of the Civil Litigation standard at the time, and there was no reason to doubt this evidence. Nonetheless, the Privacy Commissioner subsequently appointed a second Delegate to determine whether certain documents were improperly withheld under the Solicitor-Client Privilege Claim considering alleged new evidence that the was not before the Supreme Court of Canada. Ultimately, Justice Horner determined that all evidence was before the Supreme Court of Canada, and it was unreasonable for the Delegate to have parsed the Supreme Court’s reasons so as to reject their conclusion on the validity of the Solicitor-Client Privilege.

The University of Calgary requested costs be awarded on a full indemnity basis. Justice Horner considered the costs implications and noted that, under Rule 10.31, the Court has wide discretion when awarding costs. After canvassing the case law and a reviewing the evidence, Justice Horner found that, while the circumstances were not sufficiently egregious to warrant a Solicitor-Client costs award, the Commissioner’s conduct of continuing to review the Solicitor-Client issue after the determination from the Supreme Court was deserving of sanction. Justice Horner determined that costs be granted against the Commissioner on Schedule C Column 2 of the Rules.

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