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Document
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MO-1526
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Institution/HIC
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City of Toronto
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Summary
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NATURE OF THE APPEAL: The City of Toronto (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to "third party rentals of parking spaces" in two named parking garages. The City located a number of responsive records and granted access to some of them, in accordance with an Index of Records which it provided to the requester. The City denied access to other records, claiming the application of the exemptions found in sections 7(1) (advice or recommendations), 12 (solicitor-client privilege) and 14(1) (invasion of privacy) of the Act . The requester, now the appellant, appealed the City's decision to deny access to those records which were withheld and also submitted that additional records responsive to the request ought to exist. During the mediation stage of the appeal, the appellant advised that he was no longer seeking access to the information to which the City had applied section 14(1). The appellant continues to seek access to those records remaining at issue which are, according to the City, exempt under sections 7(1) and 12. In addition, the appellant continues to maintain that additional records exist. As further mediation was not possible, the appeal was moved into the adjudication stage of the process. I decided to seek the representations of the City, initially. The City made submissions in response to the Notice provided to it. The City indicates that it is no longer relying on the discretionary exemption in section 7(1) for Records 481-482; instead, it is now claiming that these documents are exempt under section 12. I then provided a Notice of Inquiry to the appellant, along with the non-confidential portions of the City's submissions. The appellant also made representations, which were in turn shared with the City, who then made further submissions by way of reply. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The City submits that the records qualify for exemption under section 12 of the Act . This exemption encompasses two heads of privilege, as derived from the common law: (i) solicitor-client communication privilege; and (ii) litigation privilege. In order for section 12 to apply, the institution must establish that one or the other, or both, of these heads of privilege apply to the records at issue. The City has not made any representations in support of the possible application of the litigation privilege aspect of solicitor-client privilege. I will, accordingly, only address the possible application of the solicitor-client communication portion of the section 12 exemption. Solicitor-client communication privilege The City maintains that solicitor-client communication privilege applies to all of the records at issue in this appeal. 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 client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communications and meetings between the 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. A letter from the client containing information may end with such words as "please advise me what I should do." But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice
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Legislation
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Subject Index
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Published
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Apr 04, 2002
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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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