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Document
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PO-1994
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File #
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PA-010277-1
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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:
The Ministry of the Attorney General (the Ministry) received a request pursuant to the Freedom
of Information and Protection of Privacy Act (the Act) for access to: “All records and
correspondence during the last two years about trial delays because of a shortage of judges.”
The Ministry identified 29 responsive records, and provided the requester with full access to 20
of them and partial access to three others. Access to the remaining records or partial records was
denied on the basis of one or more of the following exemptions contained in the Act:
• section 13(1) (advice or recommendations)
• section 19 (solicitor-client privilege)
• section 21(1) (invasion of privacy)
The Ministry also denied access to the undisclosed portions of Record 29 on the basis that it
consisted of non-responsive information.
The requester, now the appellant, appealed the Ministry’s decision.
During mediation the appellant agreed not to pursue access to the information the Ministry
claimed was non-responsive in Record 29, and to all information that was withheld under section
21(1). Accordingly only Records 1-3 and the undisclosed portions of Records 23 and 26 remain
at issue in this appeal. Section 13(1) has been claimed for all of these records, and section 19 has
been identified as an additional exemption claim for Records 1-3.
Further mediation was not successful, and the appeal proceeded to the adjudication stage. I sent
a Notice of Inquiry to the Ministry initially, and received representations in response. I then sent
the Notice and the Ministry’s representations to the appellant, who also provided representations.
RECORDS:
Records 1-3 comprise a memorandum from the Director of Crown Operations in the Toronto
Region to the Attorney General on the issue of trial delays in that Region.
Records 23 and 26 are the first pages of two 3-page “House Book Notes” on the topic of the
appointment of bilingual judges. The response section of both Notes has been withheld and the
remaining portions have been disclosed to the appellant.
DISCUSSION:
Solicitor Client Privilege
The Ministry has claimed section 19 of the Act only for Records 1-3.
- 2 -
[IPC Order PO-1994/February 28, 2002]
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.
The Ministry states:
The Ministry submits that [the records qualify] for an exemption pursuant to
section 19 of the Act regarding solicitor client privilege. The Ministry
additionally claims that the privilege attached to these records has not been
waived. The record was authored by counsel in the Ministry and it was addressed
to the Minister. … It is a confidential internal legal memorandum.
The Ministry then reviews a number of previous orders which upheld the solicitor-client
exemption claim for certain types of records, and refers to what it describes as the four criteria of
the common law solicitor-client communications privilege set out in Order M-394:
1. there must be a written or oral communication;
2. the communication must be of a confidential nature;
3. the communication must be between a client (or his agent) and a legal
adviser; and
4. the communication must be directly related to seeking, formulating or giving
legal advice.
The Ministry submits:
The record in question is a written confidential memorandum regarding trial delay
prepared by counsel, who is also a senior manager in the Criminal Law Division,
for the purpose of briefing and providing legal advice to the Minister. The record
offers a legal opinion, regarding trial delays, legal advice, and recommendations
regarding steps to be taken in relation to the issue. Accordingly, it is the
Ministry’s position that all of the above criteria have been met and this record is
covered by solicitor-client privilege and is exempt pursuant to section 19 of the
Act.
Elsewhere in its representations, the Ministry states that Records 1-3 were prepared by the
Director “solely for the purpose of advising the Minister in relation to the business of the
Ministry.”
Solicitor-client communication privilege has been described in a number of different ways,
including by the four criteria referred to by the Ministry. However, in my view, Adjudicator
Holly Big Canoe in Order P-1551 outlines the most appropriate characterization of this privilege.
As she states in that order, 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
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[IPC Order PO-1994/February 28, 2002]
privilege is to ensure that a client may confide in his or her lawyer on a legal matter without
reservation.
A number of courts have described solicitor-client communication privilege.
The Supreme Court of Canada in Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 at 618
described the 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 ... [See Order P-1409]
The English Court of Appeal found that the privilege applies 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 also 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].
In assessing whether or not a record qualifies for exemption under solicitor-client communication
privilege, I must be satisfied that the communication was made for the dominant purpose of
seeking or providing legal advice [See Ontario (Minister of Finance) v. Ontario (Information
and Privacy Commissioner) (1997), 102 O.A.C. 71 (Div. Ct.); Ontario (Attorney General) v.
Hale (1995), 85 O.C.A. 229 (Div Ct.); Descôteaux, supra; and Orders PO-1663 and MO-1205).
- 4 -
[IPC Order PO-1994/February 28, 2002]
The Director of Crown Operations for the Toronto Region prepared Records 1-3. The Ministry
refers to this individual as “counsel”, and also as a “senior manager” in the Criminal Law
Division. Although I have not been provided with information concerning the qualifications of
the position of “Director of Crown Operations”, given the nature of the role, I assume it would
require the incumbent to be a lawyer. In any event, the Ministry has stated that the particular
individual holding this position at the time the memorandum was prepared was a lawyer, and I
accept that. Also, based on the Ministry’s representations, I find that the memorandum was
prepared by the Director and communicated in writing to the Attorney General with a
reasonably-held expectation of confidence.
However, in my view, the fact that the Director of Crown Operations is a lawyer is itself not
sufficient to establish that all communications made by the Director qualify for solicitor-client
communication privilege. In order to meet the requirements of this exemption claim, I must also
be satisfied that the communication was either made for the purpose of providing legal advice, or
was part of the “continuum of communications” described by the court in Balabel.
The Ministry of the Attorney General is somewhat unique in its structure and functions. In
discharging its responsibilities for the administration of the provincial justice system, the
Ministry must and does employ a large number of lawyers who provide a wide range of legal
services. In some cases, of which the Director of Crown Operations is a good example,
individual lawyers employed by the Ministry are required to perform a combination of
responsibilities, both legal and operational. I have no difficulty in accepting that the Criminal
Law Division as a whole, which includes a regionalized “Crown Operations” structure, has as its
primary responsibility the provision of legal services to the province’s criminal court system.
However, it is important to recognize that this Division (as well as others in the Ministry) is also
responsible for a range of operational responsibilities, similar in nature to other operational
divisions that exist throughout the various ministries of the Ontario Government. It is the
managers who discharge these operational responsibilities and, in my view, not all advice
provided by management staff in the various Divisions of the Ministry of the Attorney General is
necessarily or inherently legal advice protected by solicitor-client privilege. One must look to
the nature of the advice itself, and distinguish between legal advice that warrants specific
treatment in accordance with the common law requirements of solicitor-client privilege, and
operational advice that should be considered under section 13(1) of the Act in the same manner
that similar types of advice is handled in other institutions.
Applying this approach to Records 1-3, I find that any advice contained in the memorandum
from the Director of Crown Operations to the Attorney General was operational and not legal in
nature. The subject matter of the memorandum is trial delays, and the summary, analysis,
explanations, advice and recommendations provided by the Director deal directly with this
operational issue. I have also turned my mind to the question of whether, despite the fact that
the memorandum does not contain legal advice, it might be part of a “continuum of
communications” involving a solicitor and client. Based on the representations provided by the
Ministry, and my independent assessment of the content of Records 1-3, I am not persuaded that
the requirements of a “continuum of communications” outlined in Balabel are present. The
memorandum would appear to be an issue-specific response to the Minister on the matter of trial
delay in Toronto, provided by the particular manager responsible for this operational issue.
- 5 -
[IPC Order PO-1994/February 28, 2002]
Absent evidence to the contrary, I am not persuaded that the memorandum is part of any
continuum of communications that would relate to legal advisory functions provided by the
Director to the Attorney General in other contexts.
Alternatively, even if it could be argued that the contents of some portions of the memorandum
constitute legal advice, I find that any such advice would not be the dominant purpose of the
communication between the Director and the Attorney General. Clearly, in my view, the
dominant, if not exclusive, purpose of any advice contained in Records 1-3 is operational and not
legal in nature.
I find support for my findings in a number of authorities. In dealing with the scope of solicitorclient
privilege, Justice Farley of the Ontario Court (General Division) stated as follows in
Confederation Treasury Services Ltd. (Re), [1997] O.J. No. 3598:
… I would also note that [solicitor client] privilege does not automatically come
into play merely because a lawyer is engaged by a client. The privilege attaches
to the request for and obtaining of legal advice. It does not attach to
communications between a client and his retained counsel when that counsel
is either not acting as a lawyer or where it is not legal advice but rather some
other form of advice or other assistance being offered. [my emphasis]
British Columbia Information and Privacy Commissioner David Loukidelis also considered a
similar issue in his Order No. 331-1999, which involved the application of solicitor-client
privilege under the comparable provisions of the British Columbia statute. In that order
Commissioner Loukidelis had to determine whether certain communications from a lawyer (who
was acting as an investigator), were privileged solicitor-client communications. After finding
that the institution had failed to establish the existence of a solicitor-client relationship,
Commissioner Loukidelis went on to state:
Even if one assumes that the Board [the institution in that case] was in a solicitorclient
relationship with the investigating lawyer, I find that the Board has not
established that the records in question were confidential communications for the
purpose of giving or seeking legal advice within such a relationship. The courts
have, in a number of cases, held that, even if a solicitor and client relationship
exists, the lawyer must be acting as a lawyer and must be providing legal advice
before the communication in question can be privileged.
For example, in Northwest Mettech Corp. v. Metcon Services Ltd., [1996] B.C.J.
No. 1915, Master Joyce ruled that communications from a lawyer to his client
were not privileged because the lawyer, who was also a patent agent, was acting
as a patent agent rather than as a lawyer with respect to those communications. A
solicitor-client relationship existed between the lawyer and his client, but that was
not enough. Master Joyce cited both Canadian and U.S. authorities for the
proposition that communications between a lawyer and his or her client, in order
to be privileged, must concern legal advice or representation. See, for example,
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[IPC Order PO-1994/February 28, 2002]
the United States District Court decision in Hercules Incorporated v. Exxon
Corporation (1977) 434 Fed. Supp. 136 (at p. 147):
If the primary purpose of a communication is to solicit or render
advice on non-legal matters, the communication is not within the
scope of the attorney-client privilege. Only if the attorney is 'acting
as a lawyer' - giving advice with respect to the legal implications of
a proposed course of conduct - may the privilege be properly
invoked. In addition, if a communication is made primarily for the
purpose of soliciting legal advice, an incidental request for business
advice does not vitiate the attorney-client privilege.
It appears that an appeal from the decision of Master Joyce was dismissed by
Smith J. of the British Columbia Supreme Court. (This is alluded to in the
judgment of Thackray J., on another aspect of the same case, in Northwest
Mettech Corp. v. Metcon Services Ltd., [1997] B.C.J. No. 2734.)
It might be argued that Northwest Mettech involved a special case, namely
individuals who are both lawyers and patent agents and are assisting a client in
obtaining or in otherwise dealing with a patent. I do not agree. In my view, the
reasoning and result in Northwest Mettech are simply consistent with other cases,
such as Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860 (S.C.C.), which require
the disputed communication to be for the purpose of giving or seeking legal
advice before it will be privileged.
In summary, I find that the communications reflected in Records 1-3 were made for the purpose,
or alternately for the dominant purpose, of providing operational advice to the Minister on issues
relating to trial delays in the Toronto Region, rather than for the purpose or dominant purpose of
providing legal advice. As such, the requirements of solicitor-client communications privilege
have not been established, and Records 1-3 do not qualify for exemption under section 19 of the
Act.
Advice and Recommendations
The Ministry claims section 13(1) of the Act as the basis for denying access to all of the records
that remain at issue. Section 13(1) reads:
A head may refuse to disclose a record where the disclosure would reveal advice
or recommendations of a public servant, any other person employed in the service
of an institution or a consultant retained by an institution.
The “advice or recommendations” exemption purports to protect the free flow of advice and
recommendations within the deliberative process of government decision-making or policymaking
(Orders 94 and M-847). In addition, information in records that would “reveal” the
advice or recommendations is also exempt from disclosure under section 13(1), even though it is
not itself advisory in nature, if disclosure of that information would permit the drawing of
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[IPC Order PO-1994/February 28, 2002]
accurate inferences as to the nature of the advice and recommendations (Orders P-233, M-280
and P-1054).
A number of previous orders have established that advice or recommendations for the purpose of
section 13(1) must contain more than mere information. To qualify as “advice” or
“recommendations”, the information contained in the records must relate to a suggested course
of action, which will ultimately be accepted or rejected by its recipient during the deliberative
process (Orders 118, P-348, P-363, upheld on judicial review in Ontario (Human Rights
Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto
Doc. 721/92 (Ont. Div. Ct.); Order P-883, upheld on judicial review in Ontario (Minister of
Consumer and Commercial Relations) v. Ontario (Information and Privacy Commissioner)
(December 21, 1995), Toronto Doc. 220/95 (Ont. Div. Ct.), leave to appeal refused [1996] O.J.
No. 1838 (C.A.)).
Records 23 and 26
The Ministry submits:
These records contain advice and/or recommendations that pertain to the
submission of a suggested course of action that will ultimately be accepted or
rejected during the deliberative process.
The records describe a possible course of action in that they contain
recommendations and options to be considered by the Minister and/or senior
management of the Ministry in discussions with other parties on the appointment
of bilingual judges.
There is factual and background information that could permit the drawing of
accurate inferences as to the nature of the actual advice or recommendations
given to the government [P-233].
I do not accept the Ministry’s position.
The undisclosed portions of Records 23 and 26 consist of suggested responses that the Attorney
General might consider in fielding questions in the Legislative Assembly in January of 1999
related to the appointment of bilingual judges. I considered a similar issue in Order PO-1678,
where I stated:
Record 39 and the remaining portions of Record 22 are “House Book notes”. …
I accept that the “Response” sections of these records contain information
provided by staff as to the manner in which the Ministers should respond to
questions on this issue. However, in my view, these records do not contain
“advice” or “recommendations” in the sense contemplated by section 13(1). The
information is provided to the Ministers for the specific purpose of making it
available to the public if called upon to do so as part of open legislative debate.
For this reason, I find that the “Response” portion of Records 22 and 39 would
- 8 -
[IPC Order PO-1994/February 28, 2002]
not reveal advice or recommendations of a public servant and, accordingly, it
does not qualify for exemption under section 13(1) of the Act. …
Adjudicator Laurel Cropley applied this analysis in Order PO-1848-F, where she found:
In my view, this reasoning [in Order PO-1678] is similarly applicable in the
current appeal. It is apparent, from the records themselves and the Ministry’s
representations, that the information that has been withheld from Records 15 and
19 was intended to be used by the Minister or senior management in responding
to public queries on this issue or as part of open legislative debate. Accordingly,
I find that the withheld portions of Records 15 and 19 would not reveal the advice
or recommendations of a public servant within the meaning of section 13(1), and
they are not exempt under this section. …
Similarly in this appeal, the information severed from Records 23 and 26 was prepared and
provided to the Attorney General for the specific purpose of making it available to the public if
called upon to do so as part of open legislative debate. As such, I find that disclosure of the
“Response” portions of pages 23 and 26 would not reveal advice or recommendations and,
therefore, they do not qualify for exemption under section 13(1) of the Act.
The Ministry has not claimed any other exemptions for Records 23 and 26, so they should be
disclosed to the appellant.
Records 1-3
As stated earlier, Records 1-3 comprise a 3-page memorandum prepared by the Director of
Crown Operations and sent to the Attorney General concerning trial delays in the Toronto
Region. In applying section 13(1) to this memorandum, the Ministry submits:
[The records were] prepared and compiled by counsel for the Ministry, who is
also a senior manager, solely for the purpose of advising the Minister in relation
to the business of the Ministry. The document contains the factual information
upon which legal advice or recommendations to the Minister are based. It
contains legal opinion and analysis and contains specific advice and
recommended courses of action for the Minister’s consideration relating to trial
delays. Disclosure of this confidential legal memorandum would inhibit the freeflow
of advice or recommendations within the deliberative process of government
decision-making. It could reasonably be expected to have a chilling effect upon
Crown counsel in the creation of written documents containing legal analysis and
advice. The disclosure of this memo would not only reveal advice to
government, it would also have a negative impact on the ability of the
government to receive free-flowing legal and policy advice and recommendations
regarding this issue and other issues in the future.
The Ministry then supports it position by referring to four previous orders of this office in which
the section 13(1) exemption claims for the records was upheld (Orders P-771, P-946, P-1037 and
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[IPC Order PO-1994/February 28, 2002]
P-1102). In reviewing those orders, I note that the section 13(1) exemption claim was upheld
only for certain portions of the records at issue in those appeals.
As the Ministry states in its representations, the memorandum that comprises Records 1-3 deals
with the subject of trial delays. The author begins the memorandum by summarizing the state of
affairs in the Toronto Region in October of 2000 (when the record was prepared), and goes on to
offer explanations, analysis and specific recommendations.
Having reviewed the memorandum, I am satisfied that the specific recommendations and the
final sentence in the “analysis” section on Record 3 fall within the scope of section 13(1).
Although, as stated earlier, I do not accept that the memorandum contains legal advice, I do
accept that these portions of Record 3 consist of or would reveal suggested courses of action put
forward by the Director of Crown Operations as the manager of the Toronto Region, which
would be accepted or rejected by the Attorney General during the deliberative process of
addressing trial delays. Accordingly, they qualify for exemption under section 13(1) of the Act
and should not be disclosed.
However, I find that the rest of the memorandum, consisting of Records 1 and 2 and the
remaining portions of Record 3, do not qualify for exemption under section 13(1). The
summary, explanations and first sentence in the “analysis” section do not contain, nor would
their disclosure reveal, “advice or recommendations” as this office has interpreted these terms.
In my view, the information contained in the summary section of Records 1 and 2 and the first
sentence of the “analysis” of Record 3 are clearly factual in nature, consisting of statistical
information concerning various aspects of court operations and the impact they are having on
case inventories. I find that this information falls within the scope of the exception provided by
section 13(2)(a) of the Act, which reads:
(2) Despite subsection (1), a head shall not refuse under subsection (1) to
disclose a record that contains,
(a) factual material;
Similarly, I find that the various explanations contained in Records 2 and 3 consist of factually
based conclusions reached by the Director of Crown Operations regarding the operation of the
courts in his Region. Although these conclusions apparently formed the basis of the advice and
recommendations that follow, in my view, they do not themselves represent “advice” and clearly
not “recommendations”.
As far as whether disclosure would reveal advice or recommendations, the Ministry submits:
It is the Ministry’s position that it is inappropriate to sever the express advice and
recommendations from the factual basis upon which they were based and
provided to the Minister. To do so would, in effect reveal the advice and
recommendations made. The factual information cannot reasonably be severed
from the advice and recommendations in the present case, as they are legal
observations intertwined with the factual assertions.
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[IPC Order PO-1994/February 28, 2002]
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Legislation
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Signed by
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Tom Mitchinson
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Published
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Feb 28, 2002
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Type
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Order
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Judicial Review
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Institution's application granted March 24, 2004
Ministry of the Attorney General v. Tom Mitchinson, Assistant Information and Privacy Commissioner, and Jane Doe, Requester, Toronto Doc. 190/02 (Div. Ct.)
Divisional Court Decision
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