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Document
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MO-1500
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Institution/HIC
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District Municipality of Muskoka
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Summary
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NATURE OF THE APPEAL: The District Municipality of Muskoka (the Municipality) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: All records in any way referring to, relating to, or possibly relating or referring to [a named construction company] that [the company] has not already received for the period between Jan. 1, 1996 to date [December 29, 2000]. This would also include but not be limited to records that relate in any way to the contract between the District and [the company] for the Ferndale Road Water Treatment Plant and Minto Street Water Treatment Plant. This request is for written documents, as well as e-mail, handwritten notes, phone messages, personal diary entries, etc, of any individual and each member of council. The Municipality originally refused to process the request, claiming that under sections 4(1)(b) and 20.1 of the Act , the request was frivolous and vexatious. By way of Order MO-1427, dated May 1, 2001, Adjudicator Sherry Liang did not uphold the decision of the Municipality not to process the request on the basis that it was frivolous and vexatious. Accordingly, the Municipality was required to process the request. During the mediation stage of the earlier appeal dealing with the issue of whether the request was frivolous and vexatious, the requester clarified that he was not seeking any documents which he has received from the Municipality as a result of previous requests under the Act or through the normal course of events during the progress of the construction project. Following the issuance of Order MO-1427, the Municipality issued a decision letter denying access in full to the responsive records, claiming the application of sections 7(1) (advice or recommendations) and 12 (solicitor-client privilege) to them. The Municipality also stated that there were no records responsive to that portion of the request relating to council members' records as these individuals are not employees of the Municipality. In a subsequent decision letter, the Municipality also claimed the application of section 6(1)(b) and the mandatory exemptions in sections 10(1)(a) and (c) of the Act to the records. The requester, now the appellant, appealed each of these decisions. He also indicated that he was not seeking access to minutes of public Municipal council meetings, but is interested in receiving records relating to any in-camera meetings. During the mediation stage of this appeal, the appellant agreed to remove the council members' records and the issue of any in-camera records from the scope of the appeal. Accordingly, the application of section 6(1)(b) to the records is no longer at issue. The Municipality continued to claim the application of one or more of the remaining exemptions to the 78 documents still at issue. As no further mediation was possible, the appeal was moved into the Adjudication stage of the process. I decided to seek the representations of the Municipality, initially. I received its submissions, which were shared, in part, with the appellant. Portions of the representations of the Municipality were withheld from the appellant because of concerns that I had about their confidentiality. The appellant also made representations in response to the Notice. The Municipality has identified an additional record beyond those included on its Index, but has not made any submissions with respect to this document, marked as Record 79. I have reviewed its contents and am satisfied that no mandatory exemptions apply to exempt it from disclosure. I will, accordingly, order that it be disclosed to the appellant. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Positions of the Parties The Municipality claims the application of the solicitor-client privilege exemption in section 12 of the Act to the majority of the records at issue in this appeal. It argues that these records represent either confidential communications between solicitor and client or that they form part of the "lawyer's brief" and are, accordingly, subject to litigation privilege. It submits that, given the appellant's propensity towards litigation, it was clear early on in the construction project that litigation was likely to ensue and that its solicitors began documenting its position on various issues in order to respond to what it viewed as legal proceedings which were certain to follow. Other records represent correspondence between the Municipality and its counsel, both in-house and outside, regarding issues which arose following the initiation of the construction project by the appellant. The Municipality argues that these records were also prepared in contemplation of litigation and are subject to privilege on that basis, and that they are also exempt under the solicitor-client communication component of the exemption in section 12. In addition, the Municipality is claiming solicitor-client communication and litigation privilege with respect to correspondence between its counsel and the solicitors for various lienholders involved in the construction project. Finally, the Municipality also claims privilege attached to correspondence between its counsel and the project's performance bonding company as it argues that these records were prepared in contemplation of litigation. The appellant submits that only those documents prepared after November 5, 2000, as this is the date when it advised the Municipality of its default under the terms of its contract, are subject to litigation privilege. The appellant is of the view that all documents created prior to that date "were produced in the normal course of business" and that before that date, litigation could not have been contemplated. Finally, the appellant argues that the Municipality's in-house counsel is simply an employee and is not the "solicitor of record" in any of the proceedings under way. As a result, the appellant takes the position that communications involving this solicitor are not privileged and documents from his files are not subject to 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 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]
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Legislation
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MFIPPA
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10(1)(a)
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10(1)(c)
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7(1)
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Section 12
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Subject Index
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Published
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Jan 22, 2002
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Type
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Order
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