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Document
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P-1363
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File #
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P_9600281
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Institution/HIC
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Ontario Native Affairs Secretariat
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Summary
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BACKGROUND: On the evening of September 4, 1995, a group of aboriginal protesters beganto occupy Ipperwash Provincial Park (the Park), claiming that the Park landscontained an aboriginal burial site. During the night of September 6, 1995, ashooting incident occurred between some of the occupiers and the OntarioProvincial Police. One person died and two others were injured. The occupation of the Park resulted in meetings of the "EmergencyPlanning for Aboriginal Issues Interministerial Committee" (the Committee). This Committee formed part of a process formalized by the Ontario government in1991 to assist it in responding to emergency situations of this nature. The Committee has several roles and responsibilities in guiding andco-ordinating the government's response to an emergency situation. Theseinclude -- acquiring and distributing information pertinent to the particularsituation; developing recommendations, both legal and non-legal in nature, forthe resolution of the emergency; and co-ordinating related activities such ascommunication with the public. NATURE OF THE APPEAL: The appellant, a member of a news organization, made a request to theOntario Native Affairs Secretariat (ONAS) under the Freedom of Informationand Protection of Privacy Act (the Act ) for "... the minutes ofthe Interministerial Committee of Aboriginal Emergencies that met at IpperwashProvincial Park on September 5, 1995." ONAS denied access to the record it identified as responsive, based on thefollowing exemptions: advice or recommendations - section 13(1) right to fair trial - section 14(1)(f) solicitor-client privilege - section 19. The requester appealed this decision, and raised the possible application ofsection 23 of the Act , sometimes called the "public interestoverride". Mediation was not possible and a Notice of Inquiry was issued to ONAS andthe appellant. Representations were received from both parties. The record at issue in this appeal consists of the meeting notes of theCommittee dated September 5, 1995. 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-clientprivilege or that was prepared by or for Crown counsel for use in giving legaladvice or in contemplation of or for use in litigation. This section consists of two branches, which provide a head with thediscretion 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 givinglegal advice or in contemplation of or for use in litigation (Branch 2). ONAS claims that the entire record is exempt under both branches of section19. Branch 1 In order for a record to be subject to the common law solicitor-clientprivilege (Branch 1), the institution must provide evidence that the recordsatisfies 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 legaladvisor, and (d)the communication must be directly related to seeking, formulating orgiving legal advice; OR 2.the record was created or obtained especially for the lawyer's brief forexisting or contemplated litigation. These criteria for exemption under Branch 1 were first adopted in Order 49. They derive from a leading case at common law, Susan Hosiery Limited v.Minister of National Revenue [1969] 2 Ex. C.R. 27. In its representations, ONAS indicates that its Branch 1 claim is based onPart 1 of Branch 1 (whose requirements are specified in items 1(a), (b), (c) and(d), above). ONAS states that the record constitutes the official recorded minutes of theCommittee's September 5 meeting, and that it reflects oral communicationsbetween the individuals who attended the meeting. I am satisfied that this isthe case, and item (a) under Part 1 has been met. As to whether this communication was of a confidential nature, ONAS submitsthat all Committee meetings are held on a highly confidential basis. Accordingto ONAS, this allows participants to speak freely and fully explore a variety ofavailable alternatives for alleviating emergency situations. Given the natureof the record and the circumstances in which it was created, I am satisfied thatthe communications it reflects were of a confidential nature, and item (b) underPart 1 has been met. With respect to item (c), ONAS' representations indicate that severalOntario government lawyers (also known as Crown counsel) were in attendance atthe meeting to provide legal advice. ONAS submits that the communications madeduring the meeting were between legal advisors and their client. The appellant submits that the client cannot be anyone other than members ofthe institution (in this case, ONAS), and the presence of a non-client vitiatesthe privilege. The appellant states that there "... were allegedly severalpeople in the room, including a member of the Premier's political staff whocannot be construed as a client of the lawyer". In my view, the "client" of lawyers employed by the Ontariogovernment as Crown counsel is the provincial Crown. Apart from governmentlawyers, those in attendance at the meeting were: Executive Assistants to various Ministers, and to the Premier; Parliamentary Assistant to a Minister; Executive and another assistant to a Parliamentary Assistant; and/or Members of the Ontario Public Service. It is clear that all these individuals were either employees of theprovincial Crown or were present in an official capacity to assist thegovernment in formulating a response to the situation at the Park. In thiscircumstance, any privilege which might arise in connection with discussionsthat took place would not be lost because of the presence of these individualsat the meeting. Accordingly, I do not agree with the appellant's submission onthis point and I find that item (c) under Part 1 has been satisfied. However,in reaching this conclusion, I do not accept that all communications made duringthe meeting, as reflected in the record at issue, were between a client and alegal advisor. With respect to item (d), ONAS submits that the minutes are a record ofcommunications during the meeting that were made and received for purposesrelating to the seeking, formulation and giving of legal advice. In thisregard, ONAS cites a number of cases to suppo
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Legislation
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FIPPA
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14(1)(f)
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Section 19
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Section 23
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13(1)
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Subject Index
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Signed by
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Tom Wright
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Published
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Mar 10, 1997
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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