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Document
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P-1632
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File #
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P_9700352
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: This is my final order in respect of the outstanding arising issues from Interim Order P-1619. BACKGROUND: The Ministry of the Attorney General (the Ministry) and the Ontario Native Affairs Secretariat (ONAS) received a request for access to specified records relating to the Emergency Planning for Aboriginal Issues Interministerial Committee and/or Ipperwash Provincial Park (Ipperwash Park). The Ministry represented both itself and ONAS throughout the request and appeal stages of this matter. The Ministry located several records and granted access in full to some and denied access in whole or in part to others. The requester appealed the denial of access. An inquiry was conducted, representations were received from both parties, and I issued Interim Order P-1619. All issues with the exception of the litigation privilege portion of section 19 of the Act were disposed of in Interim Order P-1619. In Interim Order P-1619, I stated: Having reviewed the records, in my view, the issue of whether litigation privilege which may have been enjoyed by the Crown has been lost through the absence of reasonably contemplated litigation or the termination of litigation is relevant with respect to certain records at issue in this appeal. I have decided that the parties should be given the opportunity to provide representations on this issue before I make my determination on these records, and a Supplementary Notice of Inquiry will be sent to the parties coincidental with the issuance of this order. Accordingly, a Supplementary Notice of Inquiry was issued, and representations were received from both parties. The records which remain at issue consist of court documents and drafts (such as orders, affidavits, notices of motion, statements of claim) and various other related documents (such as legal opinions, precedents and background material relating to the then-anticipated litigation). In its representations, the Ministry states that it has decided to withdraw its section 19 exemption claim for Records C58-62, C87-88, C110-111, C197-205, C219-226, C227-228, C229-233, C234-240, C244A-250, C274, C279, C286, C309, C310, M112-114, M350-357, M363-370, M371-376 and M378. It is not clear whether these records have in fact been disclosed and, because no other exemptions remain at issue with respect to these records, I will order the Ministry to disclose them to the appellant. The records which remain at issue are C73-75, C77-79, C94-96, C97-99, C101-105, C106, C107, C113, C207, C208, C215-218, 241-244, 251-253A, C255-273, C275-278, C280, C282, C283, C284, C285, C287-308, C311-315, C316, J10-12, J210-211, J382-389, M147-148, M344-349, M358-362 and M377. PRELIMINARY MATTER: Adequacy of the Ministry's decision letter The appellant submits that his representations are general because neither he nor his counsel have been able to review the records and make informed arguments on the application of the Act to them. He suggests that his counsel be allowed to view the records for the purpose of argument only, and subject to an undertaking that the contents would not be disclosed. During the course of this appeal, the appellant received the original decision letter from the Ministry; the original Notice of Inquiry which described the records and explained the exemptions which had been relied on; severed copies of certain records which include references to the exemption claims relied on for withheld portions; and the Supplementary Notice of Inquiry which further describes the records and the issues to be decided. In my view, the appellant has been provided with sufficient information to enable him to address the remaining issues in this appeal. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE This exemption is set out in section 19 of the Act , which states: 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 consists of two branches, which provide a head 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 two 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 P-1342] LITIGATION PRIVILEGE The scope of litigation privilege was described by Adjudicator Holly Big Canoe in Order P-1551, as follows: 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
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Legislation
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FIPPA
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Section 19
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Section 23
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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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Dec 15, 1998
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Type
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Order – Final
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