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Document
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PO-2164-I
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File #
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PA-020235-1 and PA-020236-1
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Institution/HIC
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Ministry of Finance
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Summary
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NATURE OF THE APPEAL: The Ministry of Finance (the Ministry) received two related requests under the Freedom of Information and Protection of Privacy Act (the Act ) from the same requester. In his first request (request/appeal #1), the requester sought access to: All records at the Ministry, excluding Ontario SuperBuild, on the contract awarded to [an identified law firm] for legal work on the proposed privatization of Hydro One. The second request (request/appeal #2) asked for the same category of records held by the Ontario SuperBuild Corporation (Superbuild). In response to request #1, the Ministry granted access to three records in their entirety and partial access to a fourth record. Access to the remaining 16 responsive records was denied on the basis of the exemption in section 19 of the Act (solicitor-client privilege). The Ministry also identified sections 13 (advice or recommendations), 21(invasion of privacy) and 17 (third party information) as alternative exemption claims for two of the records. For request #2, the Ministry granted access to three responsive records in their entirety and partial access to a fourth record. The Ministry denied access to the remaining four records on the basis of the section 19 exemption, and added sections 13 and 21 as alternative exemption claims for one record. The requester, now the appellant, appealed both decisions. Neither appeal was resolved through mediation, so both were transferred to the adjudication inquiry stage of the appeal process. Because the two appeals involve the same appellant, the same institution, and similar records and issues, I decided to combine them for the purpose of this inquiry. I sent a Notice of Inquiry to the Ministry and the identified law firm (the affected party), inviting submissions on the issues raised in the appeals. Both parties provided submitted representations. In its representations, the Ministry purported to expand the section 13(1) claim and to add section 18(1)(c) as a new exemption claim for portions of certain records. As a result, I added the late raising of discretionary exemptions as an issue in the inquiry. I revised the Notice of Inquiry to accommodate these new issues, and sent it, along with a copy of the Ministry's representations, to the appellant. The appellant responded with representations. PRELIMINARY MATTERS: Related appeal The appellant also made a third related request to the Ministry of the Attorney General. That request led to a third appeal (PA-020231-1), which I disposed of in Order PO-2154. This third appeal included some records that are identical or virtually identical to some of the records at issue in the current two appeals. Specifically, Record 2 in appeal #1 includes the same information as Record 4 in Order PO-2154 Record 8 in appeal #1 is the same as Record 3 in Order PO-2154 Record 15 in appeal #1 is virtually the same as Record 3 in Order PO-2154 Record 20 in appeal #1 is the same as Record 4 in Order PO-2154 Record 7 in appeal #2 is the same as Record 3 in Order PO-2154 Record 6 in appeal #2 is virtually the same as Record 3 in Order PO-2154 For the same reasons outlined in Order PO-2154, I find that Records 2, 8, 15 and 20 in appeal #1, and Records 2, 6 and 7 in appeal #2, qualify for exemption under section 19 of the Act . Duplicate records All of the remaining records in appeal #2 are duplicates of records in appeal #1. Specifically: Record 1 in appeal #2 is the same as Record 19 in appeal #1 Record 2 in appeal #2 is the same as Record 18 in appeal #1 Record 5 in appeal #2 is the same as Record 9 in appeal #1 For ease of discussion, I will not address the various duplicate records in appeal #2, although I will include them in my order provisions. Record 1 in appeal #1 Record 1 in appeal #1 is a covering memorandum from the Ministry's Director of Legal Services to the Coordinator of Advisory Services of Superbuild. It states that statements of account for legal services rendered by the affected party are attached. The memorandum lists the various statement dates, the time periods covered by each statement, and the total fee charged for each statement. Records similar to Record 1 have been the subject of other appeals with this office. For example, in Order PO-1922 I considered whether a record reflecting the total amount paid by the Ministry of the Attorney General to a number of lawyers representing two individuals in the context of certain prosecutions qualified for exemption under section 19 of the Act . For reasons outlined in that order, I found that the record did not qualify for exemption and ordered the Ministry of the Attorney General to disclose it. I dealt with a similar issue in Order PO-2128 involving Management Board of Cabinet. The information at issue in that appeal was the total cost figure paid by the government's legal services insurer to a number of unidentified "vendors" for services associated with a particular legal action, as reflected on a claims summary document. Again, after considering arguments put forward by Management Board of Cabinet and the insurer, I found that the total cost figure did not qualify for exemption under section 19, and ordered it to be disclosed. In both instances, the institution applied for a judicial review of my order, and in the case of Order PO-1922, the application was heard and reserved by a panel of the Divisional Court on May 30, 2003. Other courts have also dealt with cases involving the treatment of solicitor-client privilege in the context of legal accounts. In addition to the Stevens decision and two British Columbia judgements discussed later in this order, the Quebec Court of Appeal in R . v. Charron (2001), 161 C.C.C. (3d) 64 (also known as Maranda c. Canada (Gendarmerie Royale ) ( Maranda )) considered whether disclosing the payment of legal fees per se constituted a breach of solicitor-client privilege. In finding that it did not, the court characterized the amount paid to a lawyer as a "fact" and not a "communication", and found that this "fact" did not, on its own, reveal confidential information arising from the solicitor-client relationship. The Maranda case was appealed to the Supreme Court of Canada, which heard argument during the week of May 26, 2003, and reserved its decision. In the circumstances, I have decided that it is appropriate for me to defer my decision on Record 1 in this appeal, pending the outcome of the judicial review application in Order PO-1922 and the judgment of the Supreme Court of Canada in Maranda . Although the records at issue in these cases are not exactly the same as Record 1, in my view, they are similar enough to reasonably assume that the direction provided by the courts could be relevant to my finding here. RECORDS: Twelve records in appeal #1, in addition to Record 1, remain at issue: Records 5, 6, 7, 9, 10, 11, 13, 14, 16, 17, 18 and 19 (in part). Records 5, 6, 7, 10, 13, 14, 16, and 17 are all legal accounts, some with covering letters attached, submitted by the affected party to the Ministry under the terms of its retainer relating to the pro
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jul 17, 2003
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Type
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Order – Interim
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