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Document
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M-213
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Institution/HIC
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Board of Education for the Borough of East York
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Summary
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ORDER BACKGROUND: The Board of Education for the Borough of East York (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to five categories of records respecting the payment of honoraria to Board Trustees. The Board provided the requester with documents which responded to two aspects of the request, indicated that responsive records did not exist for the third and denied access to the fourth and fifth groupings under section 12 of the Act . The Board also provided the requester with the total amount of funds that it had expended for legal advice respecting the subject of honoraria. The requester felt that further disclosure was warranted and appealed the denial of access. The mediation of this appeal was not successful and notice that an inquiry was being conducted to review the Board's decision was sent to the appellant and to the Board. Representations were received from both parties. Following the provision of his representations, the appellant withdrew his request for one of the remaining categories of documents. On this basis, the only record at issue in this appeal is a legal account issued to the Board by its solicitors respecting the subject of trustee honoraria. SUBMISSIONS/CONCLUSIONS: The sole issue in this appeal is whether the discretionary exemption provided by section 12 of the Act applies to the legal account. This provision reads as follows: 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 consists of two branches, which provide an institution 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 counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). The Board has claimed that the legal account is exempt from disclosure under the first branch of the section 12 exemption. In order to qualify for exemption under this branch, the Board 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] In its representations, the Board supports its reliance on section 12 in the following fashion: The Board submits that the record, which is the subject of this appeal, is exempt from being released under Branch 1 of the common law solicitor client privilege. In taking this position, the Board relies upon the decision of Southey J. in [the case of The Mutual Life Assurance Company of Canada v. the Deputy [Attorney] General of Canada, [1984] C.T.C. 155 (S.C.O. Motions Court)] and the decision of Commissioner Linden in Order 126 where both Justice Southey and Commissioner Linden specifically consider the effect of the privilege on a solicitor's Statements of Account. Relying upon these decisions, the Board submits that the record in question is clearly a confidential communication between the Board and its solicitors. The record indicates when, by whom and with whom the Board sought legal advice from its solicitors. The record also sets out the names of individuals with whom the Board's solicitor discussed certain aspects of this particular case. The Board submits that the four criteria, set out in Order 49 and above, are satisfied with respect to this record and therefore it is covered by the first branch of the solicitor-client privilege and as such falls within section 12 of the Act ... In his representations, the appellant provides some background to his request for the records. He states that, after the Board's Trustees had purported to raise their honoraria by a sizeable figure, a group of citizens voiced opposition to the increase at the next public meeting of the Board. As a result of the concerns expressed, the trustees appointed a citizens' committee to study the question of trustee honoraria. The committee ultimately recommended that the honoraria should not be increased and the trustees accepted this recommendation. The appellant then learned, however, that the trustees had spent public funds in relation to this issue. This concern then led to a further inquiry regarding the expenditure by the trustees on legal fees concerning the honoraria. The appellant then addresses the application of section 12 to the legal account in the following fashion: Regarding the general aspect of solicitor-client privilege, a solicitor's account should be contrasted with a letter of opinion or other written or verbal legal advice provided by the solicitor to the client, which would be covered by privilege. The account is a mere tally of work done, hours spent and fees generated and is not a method by which legal advice is transmitted to the client. ( Re Ontario Securities Commission and Greymac Credit Corporation , [1983] 41 O.R. (2d) (Ont. Div. Court) ... The extension of the doctrine of solicitor-client privilege to a solicitor's account would be broadening an exclusionary rule beyond what is reasonable. Exclusionary rules should be and generally are narrowly construed so that, pursuant [to] the purposes and principles embodied in the Act , the most disclosure can be made. The appellant then goes on to argue that: The Trustees are ... using the solicitor-client privilege to attempt to prevent the public from seeing how this portion of public funds were expended. The mere dollar amount is insufficient as it does not demonstrate, as the statement of accounts would demonstrate, whether the Trustees again failed to act in the public interest, or rather if they did act in the public interest. In order to resolve this appeal, it will
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Legislation
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Subject Index
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Published
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Nov 10, 1993
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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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