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Document
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MO-1276
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Institution/HIC
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Township of Glenelg
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Summary
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NATURE OF THE APPEAL: An individual (the appellant), on behalf of a group known as "The Property Owners of Glenelg," submitted a request to the Township of Glenelg (now part of the Township of West Grey) (the Township) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request stated: With reference to the [Township] council meeting minutes dated April 12th, 1999 page 6 "The clerk received another request for further information from [named solicitor] regarding Council's request for him to investigate the liability associated with the letters from the Property Owners in their newsletters and the Durham Chronicle." [I am seeking] copies of all documentation including council's original request and both replies from Mr. Greenfield, as well as the clerk's response to his request. The Township denied access to the responsive records on the basis of section 12 (solicitor-client privilege). The appellant appealed the Township's decision to this office. I initiated the inquiry by sending a Notice of Inquiry to the appellant. After reviewing the representations to me in response, I sent a modified Notice of Inquiry to the Township, together with the appellant's representations. The Township submitted representations in response. RECORDS: The records at issue in this appeal are described as follows: Record 1 Letter to a law firm from the Township dated February 25, 1999, with attachments Record 2 Letter to the Township from a law firm dated March 17, 1999 Record 3 Letter to the Township from a law firm dated April 6, 1999 Record 4 Letter to a law firm from the Township dated April 15, 1999, with attachment DISCUSSION: SOLICITOR-CLIENT PRIVILEGE 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. This section consists of two branches, which provide an institution with discretion to refuse to disclose: a record that is subject to the common law solicitor-client privilege (Branch 1); and 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). In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the institution must provide evidence that the record satisfies either of the following tests: (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 the record was created or obtained especially for the lawyer's brief for existing or contemplated litigation [Orders 49, M-2, M-19]. Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2: the record must have been prepared by or for counsel employed or retained by an institution; and the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation [Order 210]. Although the wording of the two branches is different, the Commissioner's orders have held that their scope is essentially the same: In essence, then, the second branch of section 19 was intended to avoid any problems that might otherwise arise in determining, for purposes of solicitor-client privilege, who the "client" is. It provides an exemption for all materials prepared for the purpose of obtaining legal advice whether in contemplation of litigation or not, as well as for all documents prepared in contemplation of or for use in litigation. In my view, Branch 2 of section 19 is not intended to enable government lawyers to assert a privilege which is more expansive or durable than that which is available at common law to other solicitor-client relationships [Order P-1342; upheld on judicial review in Ontario (Attorney General) v. Big Canoe , [1997] O.J. No. 4495 (Div. Ct.)]. The Township relies on both solicitor-client communication privilege and litigation privilege. I will first consider the application of solicitor-client communication privilege and then, if necessary, litigation privilege, to the records. In my analysis I will apply common law principles of solicitor-client privilege, without differentiating between the two branches, for the reasons set out above. Solicitor-client communication privilege At common law, 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 solicito
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Legislation
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Subject Index
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Published
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Feb 16, 2000
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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