|
|
Document
|
|
PO-2244
|
|
|
|
|
|
File #
|
|
PA-030185-1
|
|
|
|
|
|
Institution/HIC
|
|
Ministry of Health and Long-Term Care
|
|
|
|
|
|
Summary
|
|
NATURE OF THE APPEAL: This is an appeal from a decision of the Ministry of Health and Long-Term Care (the Ministry), made under the Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) sought access to files relating to a named company carrying on business as a medical laboratory (the affected party). The appellant noted that the laboratory stopped operating in 1992. As a large number of files were located, the Ministry contacted the appellant with a view to narrowing the scope of his request. The appellant clarified the type of records he was interested in, and subsequently, the Ministry issued a decision in which it granted access to some of the records and denied access to other records, in reliance on the discretionary exemptions under sections 13(1) (advice or recommendations) and 19 (solicitor-client privilege) of the Act . The appellant appealed the Ministry's decision to deny access to some of the records. As mediation through this office did not result in a resolution of the issues, the appeal was referred to me for adjudication. After a review of the file, I decided to add section 17 as an issue in the appeal. I sent the Notice of Inquiry to the Ministry and to the principals of the affected party (since the company was no longer in operation), initially, to invite their representations. I received representations from the Ministry only. These representations were shared in their entirety with the appellant, who has chosen not to provide representations. RECORDS: There are 18 records at issue in this appeal which consist of internal memoranda, correspondence, a briefing note and an audit report, as described in an index provided to the appellant. On my review of the records, I note that certain minor portions of them contain information about companies that are not named in the request. These portions, which are severable from the remaining information, will be treated as not responsive to the request. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE General principles Section 19 of the Act reads: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation. Section 19 encompasses two heads of privilege, as derived from the common law: (i) solicitor-client communication privilege; and (ii) litigation privilege. In order for section 19 to apply, the institution must establish that one or the other, or both, of these heads of privilege apply to the records at issue. 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 [Order P-1551]. The Supreme Court of Canada has described this privilege as follows: ... all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attaching to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship ... [ Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 at 618, cited in Order P-1409] The privilege has been found to apply to "a continuum of communications" between a solicitor and client: . . . the test is whether the communication or document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communications and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do." But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context [ Balabel v. Air India , [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P-1409]. Solicitor-client communication privilege has been found to apply to the legal advisor's working papers directly related to seeking, formulating or giving legal advice [ Susan Hosiery Ltd. v. Minister of National Revenue , [1969] 2 Ex. C.R. 27, cited in Order M-729]. Litigation privilege Litigation privilege protects records created for the dominant purpose of existing or reasonably contemplated litigation [Order MO-1337-I; General Accident Assurance Co. ]. As I find the records exempt under solicitor-client communication privilege, it is unnecessary to consider whether litigation privilege applies in this appeal. Representations The Ministry submits that Records 4, 7, 8, 13, 14, 17, 18 and 21 to 27 are exempt from disclosure under the solicitor-client communication privilege exemption in section 19. I have reviewed all of these records, and find that they consist of memoranda or other communications between legal counsel at the Ministry and other Ministry officials. From their contents, I am satisfied that they were made confidentially between solicitor (Ministry legal counsel) and client (Ministry officials), for the purpose of giving or seeking legal advice. I find, therefore, that they qualify for exemption under solicitor-client communication privilege. The Ministry's decision and accompanying Index indicated that the Ministry relied on section 19 to exempt Record 38 from disclosure. The representations of the Ministry do not address whether Record 38 is covered by solicitor-client privilege. Record 38 is neither a communication to or from legal counsel for the Ministry. Rather, it consists of two pieces of correspondence. One is a letter from an official with the Ministry to legal counsel for a third party, in response to a query. The second is a faxed letter and attachments from this legal counsel, to a Ministry official. The second letter and attachments are not responsive, as they relate to companies other than the one about which the appellant seeks information and it is unnecessary therefore to deal with them here. I find that section 19 does not apply to the first letter in Record 38, as it is not a communi
|
|
|
|
|
|
Legislation
|
|
-
FIPPA
-
Section 19
-
13(1)
-
17(1)
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Sherry Liang
|
|
|
|
|
|
Published
|
|
Feb 24, 2004
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|