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Document
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P-1634
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File #
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P_9800091
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Institution/HIC
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Ministry of the Solicitor General and Correctional Services
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Summary
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NATURE OF THE APPEAL: This order represents my final order in respect of the outstanding issues from Interim Order P-1621. BACKGROUND: The Ministry of the Solicitor General and Correctional Services (the Ministry) received a request for access to specified records relating to the meetings of the Inter-ministerial Committee for Aboriginal Emergencies and meetings of the Core Working Group from September 3, 1995 to October 1, 1995 inclusive. 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 the Ministry only, and I issued Interim Order P-1621. All issues with the exception of the litigation privilege portion of section 19 of the Act and the adequacy of search for responsive records were disposed of in Interim Order P-1621. As far as the litigation privilege issue was concerned, in Interim Order P-1621 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 pages 53 and 54. 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 on the issue of litigation privilege were received from the Ministry only. Pages 53 and 54 consist of two draft statements to be read in court. Turning to the adequacy of search issue, I made the following statement in Interim Order P-1621: In the course of adjudicating the appeal which led to Order P-1608, I was provided with representations which identified a number of records held by the Ministry concerning the Ipperwash incident. A number of these records were not responsive to the request in that appeal. However, the scope of the present appeal is different from that in Order P-1608. Based on the information provided to me by the Ministry in this appeal, I am unable to determine, one way or another, whether all records responsive to the appellant's request have been identified. Therefore, I included provisions in Interim Order P-1621 requiring the Ministry to conduct a further search for additional records responsive to the appellant's request and to communicate the results of this search to the appellant by sending him a letter summarizing the search results on or before October 28, 1998. If additional responsive records were located, I ordered the Ministry to issue an access decision concerning those records and to provide me with copies of all relevant correspondence. I subsequently received a copy of a letter the Ministry sent to the appellant on October 28, 1998, which set out the additional searches that were undertaken, how they were conducted, and their results. The Ministry's letter indicated that some additional responsive records were located and that an access decision on these records would be provided to the appellant by November 7, 1998. A copy of the Ministry's November 6, 1998 access decision letter to the appellant was received by this office on November 9, 1998. I am satisfied that the Ministry has complied with provisions 4-7 of Interim Order P-1621, which relate to the adequacy of search issue. The only outstanding issue in this appeal is the application of section 19 of the Act to pages 53 and 54. 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.
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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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Dec 15, 1998
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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