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Document
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M-974
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Institution/HIC
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City of Scarborough On June 12, 1997, the undersigned was appointed Inquiry Officer and receiveda delegation of the power and duty to conduct inquiries under the provincial Freedom of Information and Protection of Privacy Act and the MunicipalFreedom of
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Summary
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NATURE OF THE APPEAL: The City of Scarborough (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act )for a copy of a specific report prepared by the City Solicitor regarding aproposed by-law dealing with the licensing of adult video stores. The Citydenied access to the report based on the following exemption: section 12 - solicitor-client privilege The requester (now the appellant) appealed this decision to theCommissioner's office. This office sent a Notice of Inquiry to the City and theappellant. Representations were received from both parties. The record at issue is a one-page report to the Chair and the members of thePlanning and Buildings Committee of the City from the City Solicitor. PRELIMINARY ISSUES: The appellant devotes a large portion of his representations to argumentswhich relate to the process surrounding the proposal of the by-law. Forexample, he states that the City's actions in denying the release of the recordfundamentally constrained the ability of his client to fully participate in thispublic decision making process, which is contrary to the principles of naturaljustice, the rule of law and jurisprudence. Further, he states that the denialof access has precluded an assessment of whether the City of Scarboroughconsidered less draconian alternatives than the current course which results inthe City substantially violating the fundamental constitutional right of freedomof expression. In my view, the appellant's arguments with respect to disclosure during theby-law process are not relevant to the application of section 12 of the Act to the requested report. This is not the proper forum for any complaints he mayhave with regard to that process. Had the legislators intended that the Act not apply to records related to certain processes such as the process by which amunicipality introduces a by-law, they could have used specific wordings to thateffect. I find no such wording in the Act and the appellant has notdrawn my attention to any section of the Act which might be interpreted in such a manner. In my view, the Act can and should operate as an independent piece of legislation. The appellant also raises the issue of public interest in the disclosure ofthe record. Section 16 of the Act states that an exemption of a recordunder sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling publicinterest in the disclosure of the record clearly outweighs the purpose of theexemption. Therefore, section 16 would not be available to the appellant shouldI find that the record at issue is properly exempt under section 12. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Section 12 of the Act states that a head may refuse to disclose arecord that is subject to solicitor-client privilege (Branch 1) or that wasprepared by or for counsel employed or retained by an institution for use ingiving legal advice or in contemplation of or for use in litigation (Branch 2). The City relies on both branches of the exemption. In order for the record to be subject to the common law solicitor-clientprivilege (Branch 1), the City must provide evidence that the record satisfieseither 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. [Orders 49, M-2 and M-19] A record can be exempt under Branch 2 of section 12 regardless of whetherthe common law criteria relating to Branch 1 are satisfied. Two criteria mustbe satisfied in order for a record to qualify for exemption under Branch 2: 1.the record must have been prepared by or for counsel employed orretained by the City; and 2.the record must have been prepared for use in giving legal advice, or incontemplation of litigation, or for use in litigation. With respect to Branch 1 of the test, the City states that the record is awritten communication between City Council as client and its legal advisor - theCity Solicitor. It states that the record is clearly identified as aconfidential document that was considered in camera and has alwaysbeen treated as a confidential communication. The City adds that the record ismore than "directly related" to giving legal advice, it is the legaladvice to Council. Having reviewed the record, I am satisfied that it is subject to the commonlaw solicitor-client privilege (Branch 1). It is a written communication of aconfidential nature prepared by the City's legal advisor to the Chair andMembers of the Committee. The contents of the record directly relate to thegiving of legal advice. In his representations, the appellant states that there has been an impliedwaiver of privilege by the large scale distribution of the record and by thereferences to the record in Planning Department reports. The City states that the record is and has always been treated as aconfidential communication between solicitor and client. Waiver of privilege is ordinarily established where it is shown that thepossessor of the privilege (1) knows of the existence of the privilege, and (2)voluntarily evinces an intention to waive the privilege [ S. & K.Processors Ltd. v. Campbell Avenue Herring Producers Ltd. , [1983] 4 W.W.R.762, 45 B.C.L.R. 218, 35 C.P.C. 146 (S.C.) at 148-149 (C.P.C)]. Generally,disclosure to outsiders of privileged information would constitute waiver ofprivilege [J. Sopinka et al., The Law of Evidence in Canada at p. 669. See also Wellman v. General Crane Industries Ltd. (1986), 20 O.A.C. 384(C.A.); R. V. Kotapski (1981), 66 C.C.C. (2d) 78 (Que. S.C.)]. Strictly speaking, since the client is the "holder" of theprivilege, only the client can waive it. However, the client's waiver of theprivilege can be implied from the actions of the client's solicitor. In Order M-260, former Inquiry Officer Anita Fineberg considered the issueof implied waiver. Quoting from Solicitor-Client Privilege in Canadian Law ,R.D. Manes and M.P. Silver, (Butterworth's, 1993) at pp. 189 and 191, shestated: Generally waiver can be implied where the court finds that an objectiveconsideration of the client's conduct demonstrates an intention to waiveprivilege. Fairness is the touchstone of such an inquir
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Legislation
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Subject Index
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Published
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Jul 24, 1997
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Type
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Order
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