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Document
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P-1561
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File #
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P-9700232
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Institution/HIC
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Ministry of the Attorney General
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Summary
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BACKGROUND:
In 1993, two men with a gun confronted a third man. This resulted in a series of events which
led to the first man’s death. The third man was originally charged with criminal negligence
causing death and manslaughter in relation to the first man’s death, but those charges were
withdrawn. The second man was charged and convicted of a number of weapons offences in
connection with this incident.
The deceased man’s family is suing the appellant, an insurance company, to recover the death
benefit under the deceased man’s life insurance policy. The appellant has denied liability on the
basis that the death of the insured occurred as a result of his involvement in criminal activity.
The appellant is seeking information regarding the circumstances of the death of the insured in
order to defend itself in the civil action.
NATURE OF THE APPEAL:
The appellant made a request under the Freedom of Information and Protection of Privacy Act
(the Act) to the Ministry of the Attorney General (the Ministry). The request was for access to
records relating to the circumstances surrounding the death of the deceased man.
The Ministry identified 1951 pages of responsive records consisting of general correspondence,
internal memos, documentary evidence, pre trial brief, Crown brief, court documents,
preliminary inquiry transcript, photographs and a video. The Ministry denied access to all
responsive records pursuant to the following exemptions:
× solicitor-client privilege - section 19
× invasion of privacy - section 21
The appellant appealed the decision of the Ministry to deny access to the records.
This office sent a Notice of Inquiry to the Ministry and the appellant. Representations were
received from both parties.
RECORDS:
The records are identified by category in Appendix “A” to this order. Category H refers to
duplicate copies of records found originally in Categories C and D. My findings with respect to
the records in Categories C and D should be applied equally to the duplicate records found in
Category H.
PRELIMINARY MATTER:
The records in Category A are identified as the transcript of the preliminary hearing of the
prosecution of the weapons offences. The transcript indicates that this proceeding was subject to
a publication ban. The Ministry has confirmed that the publication ban expired on conclusion of
the trial, and is no longer in effect.
- 2 -
[IPC Order P-1561/May 11, 1998]
DISCUSSION:
SOLICITOR-CLIENT PRIVILEGE
Section 19 of the Act consists of two branches, which provide the Ministry with the discretion to
refuse to disclose:
1. a record that is subject to the common law solicitor-client privilege;
(Branch 1) and
2. a record which was prepared by or for Crown counsel for use in giving
legal advice or in contemplation of or for use in litigation (Branch 2).
In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the
Ministry must provide evidence that the record satisfies either of the following tests:
1. (a) there is a written or oral communication, and
(b) the communication must be of a confidential nature, and
(c) the communication must be between a client (or his agent) and a
legal advisor, and
(d) the communication must be directly related to seeking, formulating
or giving legal advice;
OR
2. the record was created or obtained especially for the lawyer’s brief for
existing or contemplated litigation.
[Order 49]
Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2:
1. the record must have been prepared by or for Crown counsel; and
2. the record must have been prepared for use in giving legal advice, or in
contemplation of litigation, or for use in litigation.
[Order 210]
The Ministry submits that all of the records qualify for exemption under Branch 2 of section 19,
as they were prepared by Crown counsel for use in litigation.
Having reviewed the records, I find that each category contains records which were prepared by
or for Crown counsel in contemplation of litigation or for use in litigation. However, in Order
P-1342 I considered whether Branch 2 of the section 19 exemption would be available in cases
where a record would not qualify for solicitor-client privilege at common law under Branch 1.
After reviewing the legislative history of section 19, I concluded (at page 8):
- 3 -
[IPC Order P-1561/May 11, 1998]
In essence, then, the second branch of section 19 was intended to avoid any
problems that might otherwise arise in determining, for purposes of solicitorclient
privilege, who the “client” is. It provides an exemption for all materials
prepared for the purpose of obtaining legal advice whether in contemplation of
litigation or not, as well as for all documents prepared in contemplation of or for
use in litigation. In my view, Branch 2 of section 19 is not intended to enable
government lawyers to assert a privilege which is more expansive or durable than
that which is available at common law to other solicitor-client relationships.
In that case, four records were at issue. The Ministry claimed that the Branch 1 litigation
privilege applied to two of the four, and that the Branch 2 litigation privilege applied to all four.
I found that none of the records qualified for litigation privilege under either branch, since the
relevant litigation had terminated and, alternatively, since the Ministry had waived any privilege
which might have attached through disclosure to a third party. This order was sustained by the
Ontario Court (General Division) Divisional Court on judicial review. In Ontario (Attorney
General) v. Big Canoe, [1997] O.J. No. 4495 (Div. Ct.), the court found that the common law
principle of waiver applies equally to Branch 1 and Branch 2 of section 19 of the Act. In my
view, consistent with this court decision, other common law principles which define the scope of
solicitor-client and litigation privilege should apply equally to both branches. This preserves for
government institutions the full scope of the privilege extended to private litigants.
Accordingly, I must consider whether the common law principles which define the scope of
Branch 1 of the privilege, and apply equally to Branch 2, are present in the circumstances of this
appeal in order to determine whether the records at issue qualify for exemption under Branch 2
of section 19.
• Solicitor-Client Communication Privilege
Solicitor-client communication privilege protects direct communications of a confidential nature
between a solicitor and client, or their agents or employees, made for the purpose of obtaining
professional legal advice. The rationale for this privilege is to ensure that a client may confide in
his or her lawyer on a legal matter without reservation.
Having reviewed the records at issue, I am satisfied that they are not direct communications
between a solicitor and client, or their agents or employees. Accordingly, this part of the
exemption does not apply.
• Litigation Privilege
Litigation privilege, often referred to as the “work product” or “lawyer’s brief” rule, protects
documents which are not direct solicitor-client communications, but which are “derivative” of
that relationship. This includes communications between the solicitor or the client and third
parties, documents generated internally by the solicitor or the client, or documents compiled for a
lawyer’s brief, where the dominant purpose for which they were created or obtained is existing
or reasonably contemplated litigation. Litigation privilege applies only if the document was
made or obtained with an intention that it be confidential in the course of the litigation.
- 4 -
[IPC Order P-1561/May 11, 1998]
The rationale for litigation privilege is to protect the adversary system of justice by ensuring a
zone of privacy for counsel preparing a case for litigation [Hickman v. Taylor 329 U.S. 495 at
508-511 (1947); Strass v. Goldsack (1975), 58 D.L.R. (3d) 397 at 424-425 (Alta. C.A.); General
Accident Assurance Co. v. Chrusz (1997), 34 O.R. (3d) 354 at 370 (Gen. Div.), leave to appeal
granted (1997), 35 O.R. (3d) 727 (Gen. Div.)]. As the Ontario Court (General Division)
Divisional Court explained in Ottawa-Carleton (Regional Municipality) v. Consumers’ Gas Co.
(1990), 74 D.L.R. (4th) 742 at 748:
The adversarial system is based on the assumption that if each side presents its
case in the strongest light the court will be best able to determine the truth.
Counsel must be free to make the fullest investigation and research without
risking disclosure of his opinions, strategies and conclusions to opposing counsel.
The invasion of privacy of counsel’s trial preparation might well lead to counsel
postponing research and other preparation until the eve of or during the trial, so as
to avoid early disclosure of harmful information. This result would be counterproductive
to the present goal that early and thorough investigation by counsel
will encourage an early settlement of the case. Indeed, if counsel knows he must
turn over to the other side the fruits of his work, he may be tempted to forego
conscientiously investigating his own case in the hope he will obtain disclosure of
the research investigations and thought processes in the trial brief of opposing
counsel.
Under the litigation privilege or work product rule, a distinction has been drawn between
“ordinary” work product (documents gathered from third parties, the document itself or factual
information) and “opinion” work product (counsel’s mental impressions, conclusions, opinions
or legal theories), with the latter enjoying a heightened protection [R.J. Sharpe, “Claiming
Privilege in the Discovery Process”, Law Society of Upper Canada Special Lectures, 1984
(Richard DeBoo Publishers, 1984), pp. 175-177; In re Sealed Case, 676 F.2d 793 at 809-810
(U.S.C.A., Dist. Col., 1982); C.A.); Mancao v. Casino (1977), 17 O.R. (2d) 458 (H.C.)].
Having reviewed all of the records for which the section 19 exemption is claimed, I am satisfied
that each was prepared or obtained for the dominant purpose of existing or reasonably
contemplated litigation. I am also satisfied that each record was prepared or obtained with an
intention that it be confidential in the course of the litigation, with the exception of certain
records in Category F (see “No Privilege Where Communication Between Opposing Parties”
below).
• Loss of Privilege Through Termination of Litigation
Litigation privilege ends with termination of the litigation for which the documents were
prepared or obtained [Boulianne v. Flynn, [1970] 3 O.R. 84 at 90 (Co. Ct.); Meaney v. Busby
(1977), 15 O.R. (2d) 71 (H.C)]. The exception to this rule is where the policy reasons underlying
the privilege remain, despite the end of the litigation. For example, privilege may be sustained in
related litigation involving the same subject matter in which the party asserting the privilege has
an interest [Carleton Condominium Corp. v. Shenkman Corp. (1977), 3 C.P.C. 211 (Ont. H.C.)].
In other words, the law will only give effect to the privilege while the purpose for its recognition
continues to be served. Unlike solicitor-client communication privilege, the purpose of which is
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[IPC Order P-1561/May 11, 1998]
to protect against disclosures which could have a chilling effect on the solicitor-client
relationship, the purpose of litigation privilege is to protect against disclosures which could have
a chilling effect on the lawyer’s preparation for the particular litigation, or any related litigation
arising out of the same subject matter.
As indicated above, “opinion” work product, which consists of counsel’s mental impressions,
conclusions, opinions or legal theories, enjoys a heightened protection over ordinary work
product. Having reviewed the records at issue, I find that there are six pages of undated
handwritten notes on lined paper, headed “matters to consider” in Category C and two copies of
a five-page letter dated March 15, 1994 from the Assistant Crown Attorney in Category G which
consist of “opinion” work product. In the circumstances, I am satisfied that the rationale for
litigation privilege is present with respect to these records. Accordingly, despite the termination
of litigation, I find that these records qualify for exemption under section 19 of the Act.
With respect to the remaining records, all litigation involving the Crown is now at an end
regarding these matters and, on the basis of the representations and the contents of the records, I
am not satisfied that disclosure of these records will harm the adversarial process by hindering
the investigation and preparation of future cases of this nature. Therefore, the rationale for
litigation privilege is no longer present and, accordingly, I find that these records do not qualify
for exemption under Branch 1 of section 19.
The Ministry argues that the records deal with very sensitive matters, and that their disclosure
would inhibit future witnesses from coming forward and co-operating with the police and the
Crown Attorney’s office. The sensitivity issue is addressed in section 21(2)(f) of the Act, the
applicability of which I will consider below.
• No Privilege Where Communication Between Opposing Parties
Certain records in Category F are letters from the Crown Attorney to opposing counsel.
At common law, communications between opposing parties, even in contemplation of litigation,
are not considered privileged unless made with a view to settlement [see, for example, Flack v.
Pacific Press Ltd. (1971), 14 D.L.R. (3d) 334 (B.C. C.A.); Strass v. Goldsack (1975), 58 D.L.R.
(3d) 397 at 426-427 (Alta. C.A.)]. In Solicitor-Client Privilege in Canadian Law (Toronto:
Butterworths, 1993), R.D. Manes et al. explain the rationale for not extending privilege to cover
this circumstance (at page 148):
The key to holding that privilege cannot possibly attach to communications
between opposing parties is that in the making of such a communication, there
cannot have been an intention of confidentiality, and that the production ... cannot
violate a confidential relationship between the defendants and their solicitors.
Thus, there is no room for privilege to attach. The denial of privilege operates on
principles similar to those in waiver of privilege, in that by communicating to the
other side, the communicating party could be said to have waived privilege with
respect to that communication.
- 6 -
[IPC Order P-1561/May 11, 1998]
In my view, this common law principle also applies to the records in Category F, and therefore
no privilege attaches to these records.
In summary, I find that only the six pages of undated handwritten notes on lined paper, headed
“matters to consider” in Category C and two copies of a five-page letter dated March 15, 1994
from the Assistant Crown Attorney in Category G are exempt under section 19 of the Act.
INVASION OF PRIVACY
Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded
information about an identifiable individual. Having reviewed the records, I find that they do not
contain the personal information of the appellant.
Each category of records contains information which qualifies as the personal information of the
deceased and other witnesses and parties involved in the incident.
However, with the exception of the records in Category E, each category of records also contains
information which does not qualify as recorded information about an identifiable individual.
Since section 21 cannot apply to information which is not personal information, the records and
parts of records in Categories A to D and F to G which do not contain personal information do
not qualify for exemption under section 21 of the Act and, unless already exempt under section
19, they should be disclosed to the appellant. Because the Ministry has not indexed the records
or numbered the pages, I am unable to specify which of the records do not contain personal
information in this order. I will remain seized of the issue of identification of personal
information should the Ministry experience some difficulty.
Once it has been determined that a record contains personal information, section 21(1) of the Act
prohibits the disclosure of this information except in certain circumstances. Specifically, section
21(1)(f) of the Act reads:
A head shall refuse to disclose personal information to any person other than the
individual to whom the information relates except,
if the disclosure does not constitute an unjustified invasion of
personal privacy.
Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal
information would result in an unjustified invasion of the personal privacy of the individual to
whom the information relates. Section 21(2) provides some criteria for the head to consider in
making this determination. Section 21(3) lists the types of information whose disclosure is
presumed to constitute an unjustified invasion of personal privacy. Once a presumption against
disclosure has been established, it cannot be rebutted by either one or a combination of the
factors set out in 21(2).
A section 21(3) presumption can be overcome if there is a finding under section 23 of the Act
that a compelling public interest exists in the disclosure of the record which clearly outweighs
the purpose of the section 21 exemption.
- 7 -
[IPC Order P-1561/May 11, 1998]
The Ministry submits that section 21(3)(b) applies in the circumstances of this appeal. The
appellant argues that section 21(2)(d) is relevant. In my view, sections 21(2)(f) and 21(3)(a) are
also worth considering in the circumstances of this appeal. These sections read:
(2) A head, in determining whether a disclosure of personal information
constitutes an unjustified invasion of personal privacy, shall consider all
the relevant circumstances, including whether,
(d) the personal information is relevant to a fair determination
of rights affecting the person who made the request;
(f) the personal information is highly sensitive;
(3) A disclosure of personal information is presumed to constitute an
unjustified invasion of personal privacy where the personal information,
(a) relates to a medical, psychiatric or psychological history,
diagnosis, condition, treatment or evaluation;
(b) was compiled and is identifiable as part of an investigation
into a possible violation of law, except to the extent that
disclosure is necessary to prosecute the violation or to
continue the investigation.
The records do not contain the personal information of the appellant. Therefore the exemption
under consideration is section 21(1), which applies unless it is established that disclosure would
not be an unjustified invasion of personal privacy.
Much of the personal information found in the records was compiled and is identifiable as part of
an investigation into a possible violation of law and I find that the presumption in section
21(3)(b) applies to it. This personal information is typically found in witness statements, police
officers’ notes, and other documentary evidence.
The information in the post mortem report (in Category D) relates to the medical condition of an
individual other than the appellant. I find that the presumed unjustified invasion of privacy in
section 21(3)(a), which applies to information that “relates to medical, psychiatric or
psychological history, diagnosis, condition, treatment or evaluation”, applies.
Even if I were to find that the factor favouring disclosure in section 21(2)(d) applies to this
information, as noted previously a factor in section 21(2) cannot rebut a presumption. As this is
not information to which section 21(4) applies, I find that disclosure of this information which is
subject to the presumptions in sections 21(3)(a) and/or (b) would be an unjustified invasion of
personal privacy and it is exempt under section 21(1).
With respect to the personal information which does not fall within either presumption, I am not
satisfied that there is a sufficient link between the appellant’s civil suit and this remaining
personal information to establish the application of section 21(2)(d). As stated above, the
deceased man’s family is suing the appellant, an insurance company, to recover the death benefit
- 8 -
[IPC Order P-1561/May 11, 1998]
under the deceased man’s life insurance policy. The appellant has denied liability on the basis
that the death of the insured occurred as a result of his involvement in criminal activity. In my
view, this personal information, typically found in correspondence and related records, is not
relevant to the determination of whether the death of the insured occurred as a result of his
involvement in criminal activity, in some cases does not even relate to the insured and has no
bearing on the appellant’s civil suit. Accordingly, I find that it is therefore not “relevant to a fair
determination of rights” for the appellant and section 21(2)(d) does not apply.
As either a presumption applies or no factors favouring disclosure have been established, I find
that the records and parts of records containing personal information are exempt under section
21(1).
ORDER:
1. I uphold the Ministry’s decision not to disclose to the appellant the records or parts of
records which contain personal information.
2. I uphold the Ministry’s decision not to disclose the six pages of undated handwritten
notes on lined paper, headed “matters to consider” in Category C and two copies of a
five-page letter dated March 15, 1994 from the Assistant Crown Attorney in Category G.
3. I order the Ministry to disclose the remaining records or parts of records to the appellant
by sending them a copy by June 1, 1998.
4. In order to verify compliance with this order, I reserve the right to require the Ministry to
provide me with a copy of the records which are disclosed to the appellant pursuant to
Provision 3.
5. I remain seized of this matter to ensure implementation of and compliance with this order
in accordance with its terms.
Original signed by: May 11, 1998
Holly Big Canoe
Adjudicator
(formerly Inquiry Officer)
[IPC Order P-1561/May 11, 1998]
APPENDIX “A”
INDEX OF RECORDS AT ISSUE
RECORD CATEGORY
DESCRIPTION
A Preliminary inquiry transcript of the prosecution of the weapons offences.
The transcripts are 129 pages in length.
B Pre-trial brief for both criminal cases assembled for the Crown to use during
pre-trial negotiations. The negotiations were conducted in order to determine
whether the respective prosecutions could be resolved without the need of a
trial. The pre-trial brief is 56 pages long.
C Crown brief for prosecution of the weapons offences. The brief contains will
says, witness statements, accident reports, etc. and is 151 pages long.
Contained in a separate envelope is 589 pages of documentary evidence,
including telephone records, that was compiled for the prosecution.
D Crown brief for the prosecution of the third man. The brief is set out in 5
volumes (a total of 539 pages). The brief contains will says, witness
statements, accident reports, statements by police officers, police officer’s
notes, etc. Contained in a separate envelope are 163 photograph of the crime
scene, as well as a video of the crime scene.
E Copies of documents filed in court for the prosecution of the weapons
offences. These documents include a pre-sentence report and a copy of an
application record.
F Correspondence between the Crown, Defence Counsel and the trial
coordinator for both prosecutions. The correspondence includes requests for
disclosure, the scheduling of pre-trials and other court appearances as well as
discussions regarding issues that arose in the course of the prosecution. These
documents total 93 pages.
G Correspondence between the Crown and the police, between Crown Attorneys
and memos to file. This group also contains the Crown’s legal opinion
concerning the decision not to proceed with the prosecution of the third man.
These documents number 84 pages.
H Duplicate copies of reports and statements that were part of the two Crown
briefs.
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Legislation
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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May 11, 1998
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Type
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Order
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Orders and Reports Considered
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R-980036
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Judicial Review
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Status for Order P-1561:
Order P-1561 rescinded. See judicial review of Reconsideration Order R-980036
Status for Reconsideration Order R-980036:
Institution's application allowed December 7, 2001
Requester's cross-application dismissed December 7, 2001
IPC's appeal dismissed by Court of Appeal November 29, 2002
IPC's application for leave to appeal to Supreme Court of Canada dismissed May 15, 2003
Citation for Order P-1561:
Attorney General of Ontario v. Holly Big Canoe, Inquiry Officer, and James Doe, Requester, Toronto Doc. 316/98 (Div. Ct.)
Citation for Reconsideration Order R-980036:
Ontario (Attorney General) v. Big Canoe, [2002] O.J. No. 4596, 62 O.R. (3d) 167, 220 D.L.R. (4th) 467, Tor. Doc. C37981 (C.A.), affirming [2001] O.J. No. 4876, 208 D.L.R. (4th) 327 (Div. Ct.); application for leave to appeal dismissed [2003] S.C.C.A. No. 31, File No. 29572 (S.C.C.)
Divisional Court Decision
Court of Appeal Decision
Supreme Court of Canada Decision
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