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Document
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MO-1801
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Institution/HIC
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City of Kitchener
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Summary
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NATURE OF THE APPEAL: The City of Kitchener (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: all reports, studies, assessments, minutes, memoranda, correspondence or other materials in the City’s possession pertaining to the value prior to the City of Kitchener’s acquisition (by any means) of properties and/or any businesses situated thereon separately or in any combination for ten specified addresses. The City located responsive records and granted access to some of them. Access to the remaining records, consisting of minutes of in camera Council meetings and appraisal reports, was denied under the discretionary exemptions in sections 6(1)(b) (closed meeting) and 12 (solicitor-client privilege) respectively. The requester, now the appellant, appealed the City’s decision. During the mediation stage of the appeal, the appellant agreed not to pursue access to the Council minutes. As further mediation was not possible, the appeal was moved into the adjudication stage of the process. I sought and received the representations of the City, which were then shared, in their entirety, with the appellant. I also received representations from the appellant and shared them, in turn, with the City, who then made additional submissions by way of reply. RECORDS: The records at issue consist of appraisal reports and notes prepared by an appraiser and certain notes made by the City Solicitor relating to ten specified properties. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE General principles Section 12 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 counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. Section 12 contains two branches as described below. The institution must establish that one or the other (or both) branches apply. The City takes the position that the records are subject to both the solicitor-client communication privilege at common law, as described in Branch 1, and statutory solicitor-client privilege from Branch 2. Branch 1: common law privileges This branch applies to a record that is subject to “solicitor-client privilege” at common law. The term “solicitor-client privilege” encompasses two types of privilege: solicitor-client communication privilege litigation privilege 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 or giving professional legal advice [ Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)]. 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 privilege applies to “a continuum of communications” between a 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 [ Balabel v. Air India , [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)]. The privilege may also 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]. Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [ General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)]. Branch 2: statutory privileges Branch 2 is a statutory solicitor-client privilege that is available in the context of institution counsel giving legal advice or conducting litigation. Similar to Branch 1, this branch encompasses two types of privilege as derived from the common law: solicitor-client communication privilege litigation privilege The statutory and common law privileges, although not necessarily identical, exist for similar reasons. One must consider the purpose of the common law privilege when considering whether the statutory privilege applies. Statutory solicitor-client communication privilege Branch 2 applies to a record that was “prepared by or for counsel employed or retained by an institution for use in giving legal advice.” Representations of the parties In its initial submissions, the City argues that the records: . . . were utilized by the then City Solicitor, as in house Legal Advisor for [the City] for the purposes of giving and formulating legal advice with respect to the acquisition of the 10 properties, the communication of which was to his client, City Council, in confidence in Caucus (in camera). The acquisition endeavour took place over a protracted period of time and pertained to over half of a city block located immediately adjacent to City Hall in the heart of Kitchener’s downtown. The City Solicitor was a key player participating in the negotiations of the acquisition of the said properties and participated in countless numbers of Caucus discussions where he provided legal advice to Council and sought their direction. All of the discussions between the City Solicitor and Council were in confidence, in caucus, for the purposes of affected the acquisition of the various parcels. . . . The appraisals and the additional evaluation information as reflected in some of the notes were prepared and secured from accredited appraisers at the request of the City Solicitor for the purpose of formulating and providing legal advice to Council. Throughout this endeavour the City Solicitor made notes pertaining to the evaluation in the process of formulating his legal advice and these are his working notes for the purposes of providing Council with said legal advice and carrying out the instructions rendered by Council. The land appraisals and the business valuation appraisal, as well as additional evaluation information secured for the purposes and under the circumstances here referenced would in my opinion be protected by solicitor-client privilege. . . . . . . any release of such reports would be in violation of the privilege, which attached to the reports as a result of the appraisal reports being secured for and used by the City Solicitor in formulating his legal advice. City Council in turn relied on the legal advice being given and hence the appraisal reports, used in formulating the legal advice were a fundamental component of City Council’s decision and the manner in which the City conducted their negotiations. The City goes on to state that the privilege in the records at issue has not been lost through waiver as “[D]iscussions involving these documents were under very controlled circumstances with the security of these documents being maintained by the City Solicitor.” The appellant takes the position tha
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Legislation
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Subject Index
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Published
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Jun 17, 2004
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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