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Document
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PO-1714
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File #
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PA-980253-1
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Institution/HIC
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Liquor Control Board of Ontario
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Summary
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NATURE OF THE APPEAL: The appellant made a 17-part request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Liquor Control Board of Ontario (the LCBO). The request was for access to records relating to a search warrant execution and charges of unlawfully selling and keeping for sale wine contrary to the Liquor Licence Act for the period of January 1 to December 31, 1997. The LCBO identified 52 records as responsive to the request. The LCBO denied access to these records under the following sections of the Act law enforcement - section 14 third party information - section 17 solicitor-client privilege - section 19 The LCBO also indicated that no records were found with respect to parts 1, 3, 5, 9, 13, 15, 16 and 17 of the request. The appellant appealed the LCBO's decision. During mediation of the appeal, the appellant withdrew parts 1-5, 7-10 and 12-17 of his request. The appellant also sought access to correspondence, memos, etc. between the LCBO and the office of the Attorney General referable to the prosecution of the appellant, and the LCBO agreed to deal with this request as part of the existing appeal. I sent a Notice of Inquiry to the LCBO, the appellant and one party whose interests could be affected by the outcome of this appeal (the affected party). Representations were received from the LCBO only. RECORDS: The records at issue in this appeal consist of correspondence, notes and fax transmittal sheets, as well as records relating to the appellant's previous convictions. As a consequence of the appellant narrowing the scope of his appeal, only Records 1, 2, 4, 6, 7, 12-30, 32, 37, 38, 42-44, 46, 47 and 49-52 are at issue. The LCBO confirmed during the Inquiry that Records 9 and 10 have been disclosed to the appellant and are, therefore, no longer at issue. The LCBO also indicated in its representations that it has withdrawn its reliance on section 14, and the application of this section is no longer at issue. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The LCBO claims that section 19 applies to all of the records at issue in this appeal. 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 institution must provide evidence that the record satisfies either of the following 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 210] Scope of Branches 1 and 2 determined with reference to the common law Although the wording of the two branches is different, the Commissioner's orders have held that their scope is essentially the same: In essence, then, the second branch of section 19 was intended to avoid any problems that might otherwise arise in determining, for purposes of solicitor-client privilege, who the "client" is. It provides an exemption for all materials prepared for the purpose of obtaining legal advice whether in contemplation of litigation or not, as well as for all documents prepared in contemplation of or for use in litigation. In my view, Branch 2 of section 19 is not intended to enable government lawyers to assert a privilege which is more expansive or durable than that which is available at common law to other solicitor-client relationships. [Order P-1342; upheld on judicial review in Ontario (Attorney General) v. Big Canoe , [1997] O.J. No. 4495 (Div. Ct.)] Solicitor-client communication privilege At common law, 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]. This privilege has been described by the Supreme Court of Canada 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 cli
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Legislation
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Sep 02, 1999
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Type
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Order
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