The complainant, J.R., sought access to certain documents pursuant to the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25. The University complied in part, but asserted that some of the documents were protected under solicitor client privilege. J.R. was also a Plaintiff in a separate Claim claiming wrongful dismissal against the University. J.R. asked the Privacy Commissioner to review the University’s response, and a delegate of the Privacy Commissioner issued a notice to produce certain records so that the Commissioner could review them for solicitor-client privilege. The University of Calgary sought Judicial Review of the Privacy Commissioner’s Decision to issue the production notice, which Application was dismissed by the Court of Queen’s Bench. The University appealed.

The Appeal was allowed. The Court noted, with respect to Costs, that the underlying wrongful dismissal litigation concluded three years ago, and if an objection to the solicitor-client privilege had been made at the time of the litigation (which it was not), the validity of such assertions could and should have been fully and completely assessed under the comprehensive procedure set out in Rule 5.11 of the Rules of Court. Costs were thus assessed against the Commissioner.