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Document
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PO-1985
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File #
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PA-010067-1
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Institution/HIC
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Office of the Public Guardian and Trustee
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Summary
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NATURE OF THE APPEAL: The Office of the Public Guardian and Trustee (the OPGT) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: All records dated from 1991 to present, in the possession of the Office of the Public Trustee and the Ministry of the Attorney General, referencing the following issues: Income referred to in each of: section 27(2) of the Cemeteries Act , R.S.O. 1990, c. C-4; and section 36(5) of the Cemeteries Act ( Revised ), R.S.O. 1990, c. C-4; and Capital gains realized on monies held in pre-need assurance funds established by cemeteries pursuant to the requirements of section 36 of the Cemeteries Act ( Revised ), R.S.O. 1990, c. C-4, and its predecessor legislation. The OPGT identified 56 pages of responsive records, and issued a decision letter granting access to pages 1-4, and denying access to the remaining 52 pages on the basis of the following exemptions: Section 19 (solicitor-client privilege) - all pages Section 13 (advice or recommendations) - pages 39 and 51-56 The requester (now appellant) appealed the OPGT's decision. Resolution of the appeal through mediation was not successful, and it was transferred to the adjudication stage. I sent a Notice of Inquiry to the OPGT initially, and received representations in response. I then sent the Notice of Inquiry to the appellant, along with the OPGT's representations. The appellant chose not to provide representations. RECORDS: The records consist of handwritten notes prepared by OPGT's legal counsel (pages 5-25) and various notes, memoranda and correspondence received by OPGT's legal counsel from his client (pages 26-56). BACKGROUND: In its representations, the OPGT outlines its responsibilities and functions under the Charities Accounting Act and the Cemeteries Act , and reviews its role over perpetual care funds, pre-need assurance funds and cemetery trust funds under that legislation. The OPGT also explains the role played by the Ministry of Consumer and Business Services (MCBS) in administering portions of this legislation. The OPGT explains that the appellant, which is a law firm, has ongoing issues with MCBS regarding certain requirements under the legislation. One issue concerns the definition of the term "income" used in the legislation. In the course of responding to issues raised by the appellant, MCBS consulted with the OPGT and asked for legal advice on the proper interpretation of the term "income". According to the OPGT, it was advised by MCBS that the appellant intended to commence court proceedings to resolve this issue. In this context, OPGT's legal counsel requested and received various records from MCBS (pages 26-56). After discussions with other lawyers at the OPGT, OPGT's legal counsel communicated his opinion orally to MCBS. The OPGT identifies that pages 5-25 consist of legal counsel's handwritten notes regarding this matter, including the handwritten notes of the actual opinion provided verbally to MCBS (pages 14-18). DISCUSSION: Solicitor-Client Privilege The OPGT submits that section 19 of the Act applies to all 52 pages of records. Section 19 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: (1) solicitor client communication privilege; and (2) litigation privilege. The OPGT's representations address both heads. I will consider solicitor client communication privilege first. 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 "
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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 31, 2001
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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