University of Calgary and the privilege claim, run again with Claira

A former employee of the University of Calgary brought a constructive dismissal claim against the University and, during that litigation, made a request under Alberta's Freedom of Information and Protection of Privacy Act. The University withheld some of the responsive records on the ground of solicitor-client privilege. When a delegate of the Information and Privacy Commissioner looked into the refusal, the University supported its claim as Alberta practice then required, with a list of the records identified by page number and an affidavit saying that privilege had been asserted over them.

The delegate asked for more and then issued a Notice to Produce Records under section 56(3) of the Act, which requires a public body to produce records to the Commissioner despite any privilege of the law of evidence. The University refused and applied for judicial review.

We act for the University, and every step of the matter runs through its records. The team has to find the ones that answer the request, decide which of those are privileged, and support the claim before a regulator who may never read them.

Counsel's first need is a measure of the collection, and above all of how much of it passed through lawyers. With the records loaded into Nuix Discover, the team would open early case assessment from More > Early case assessment and click Run assessment. Claira reads the metadata of every document in the case, never its content, and reports volume, file types, custodians, date coverage with its spikes and gaps, and the pairs of people who write to each other. It also suggests three to six review segments, each with Discover search criteria and a document count.

The People section carries the most weight here. Mail between human resources, the managers involved and the University's lawyers, in-house and outside, appears as sender and recipient pairs, which gives a first estimate of the privilege review's size and of the custodians to read first. The overview treats what the case is about as a hypothesis to test, so the team checks the points that matter in Discover.

Two pieces of writing set the terms of the review. The first is a Case Context, started from the Employment template. Counsel selects up to five key documents in Discover, such as the access request, the statement of claim and the University's response to the request, and clicks Generate from selection. The context should name each lawyer who advised the University, with their role and firm, because the privilege pass depends on those names. Claira lists up to five questions under Missing information, which can be answered with the Agent, and a partner clicks Approve when the context is right.

The second is the screening prompt. In the access request screening workflow the requester's exact wording goes into a REQUEST SCOPE section, with the access coordinator's clarifications beneath it, and the prompt asks for a call of Responsive, Partially Responsive or Not Responsive and the scope elements matched. It leaves exemptions, privilege among them, to a later pass.

Before the full run, the team tries the prompt one document at a time with single review, on five known records: one plainly responsive, one plainly outside the request and three close calls. A bulk scan then applies the final version to the collection and writes the calls into a connected Discover field, which fills while the task is still running.

The privilege pass follows on the records called Responsive or Partially Responsive. Claira's privilege review workflow works under Canadian law and covers solicitor-client, litigation, common interest and settlement privilege, and its sample prompt reports a Privilege Call, Privilege Types, Involved Parties, Justification and Supporting Excerpts. A university's lawyers often advise on policy as well as law, so the team would add one instruction: where in-house counsel is involved, say whether the communication seeks or gives legal advice. The bulk task's comments thread records why the second pass was scoped as it was.

Claira's privilege calls are recommendations, and every claim the University makes has to be confirmed by counsel. The team would start with the records most likely to be wrong: those marked privileged where the only lawyer on the thread is in-house, and those marked not privileged that still involve a lawyer. Where the prompt asked for a justification and supporting excerpts, a reviewer can read them in the Discover field beside the document and correct the coding before anyone relies on it.

For the set as a whole, the QC review workflow applies the same criteria to documents the team's reviewers have already coded and flags the documents where the two disagree. Each change to the prompt is kept in Prompt History with the added and removed words marked, and one version is marked final. That record is there if the Commissioner later asks how the claim was put together.

Some decisions belong to the people who will swear to them. The privilege call on each disputed record, the choice to group similar records into one entry, and the wording that describes a communication without disclosing it are all judgement calls, and Claira's output is a starting point for them. A justification written to explain a call will often say too much to appear on a schedule, so counsel rewrites those lines with the Commissioner as the reader.

Refusing the Notice to Produce was a legal judgement too, and in this case it went to the Supreme Court of Canada. The first court to hear the University's application upheld the notice, and the Court of Appeal of Alberta reversed. On November 25, 2016 the Supreme Court dismissed the Commissioner's appeal. Writing for the majority, Justice Côté held that section 56(3) does not require a public body to produce records over which solicitor-client privilege is claimed, because legislation can set aside that substantive protection only in clear, explicit and unequivocal language.

The decision changed what a claim has to look like. In December 2016 the Commissioner's office published a practice note for reviews in which privilege is claimed. Relying on the Supreme Court's suggestion that civil litigation rules apply, and on Canadian Natural Resources Ltd. v. ShawCor Ltd., 2014 ABCA 289, it asks for an affidavit of records with a schedule listing each record or bundle, the privilege claimed and a description that shows why the privilege applies without revealing privileged information.

An Insight from the Privilege log template can draft that schedule from the finished privilege task. Counsel asks for a table with the columns Record, Date, Privilege claimed, Description and Sources, revises it with the Agent, and downloads it to Word or Excel, where the Sources cell lists Document IDs to search in Discover. Claira checks that each citation names a document it read, and counsel verifies the rows that matter against the records. A University representative who has reviewed the records then swears the affidavit, a step that stays with the lawyers.