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Document
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MO-1306
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Institution/HIC
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Corporation of the Municipality of Clarington
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request to the Corporation of the Municipality of Clarington (the Municipality) under the Municipal Freedom of Information and Protection of Privacy Act for access to: all information, documentation, memorandum and other materials...in possession of the...[Municipality] relating to the passage of By-law 97-36. The appellant also requested: all information, documentation, memorandum and any and all other materials relating to By-law 99-123 which was passed on or about June 19, 1999 and which repeals By-law 97-36. The appellant clarified that the request included but was not limited to all documents from the Durham Regional Police Service to the Municipality and vice versa, all reports prepared internally or publicly by the Municipality, by the Department of Developing and Planning Services, by the Public Security Panel, by the Development and Corporate Services Community, any and all documents relating to the above noted by-laws which were produced prior to its enactment and subsequent thereto to the present day, all minutes of meetings held with respect to the by-laws and any and all other documents, materials, information with respect to the enactment or amendments thereto. The Municipality located the records responsive the request and granted access to most of them. The Municipality denied access to one record in its entirety pursuant to section 12 (solicitor-client privilege) of the Act . The appellant appealed the Municipality's decision to this office. During mediation, the Municipality indicated that the record at issue was prepared by its solicitor for the purpose of illustrating legal advice which he gave to the Municipality concerning the proposed enactment of an Adult Entertainment By-law by the Municipality and in contemplation of litigation that could result therefrom. Also during mediation, the appellant indicated that he does not believe that this record is subject to solicitor-client privilege as it was circulated among the officers and council of the Municipality. It appears that the appellant is also suggesting that the Municipality has waived solicitor-client privilege in the record. I sent a Notice of Inquiry to the appellant initially. The appellant did not submit representations in response to the Notice. After reviewing the record, the discussions which took place during mediation that are not subject to mediation privilege, all of which have been provided to me, and previous orders of this office, I have decided that it is not necessary to hear from the Municipality. RECORD: The record at issue consists of a 20-page document relating to a draft by-law. 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: 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 [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 Municipality 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 betw
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Legislation
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Subject Index
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Published
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May 30, 2000
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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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