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Document
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MO-1339
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Institution/HIC
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Regional Municipality of Hamilton-Wentworth
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request to the Regional Municipality of Hamilton-Wentworth (the Region) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request stated: I would like to see the itemized bills/invoices sent to the region by Gowling, Strathy and Henderson for its services on the challenge to Federal Court of the federal environmental assessment of the Red Hill Creek Expressway; as well as bills/invoices from all lobbyists hired by the region or Gowling to lobby either the Ontario or federal governments on the expressway. The Region replied as follows: In response to your request, I have provided you with a copy of the November 29 th report to the Transportation Services Committee which discusses the status of the challenge to Federal Court and provides bottom line totals of monies spent to date. I am, however, denying you access to all itemized bills/invoices pursuant to section 12 of the Act which states that, "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." It is my position that even though the bills/invoices may not contain legal advice in a conventional sense, they do reflect communications of a confidential nature between Corporate Counsel and Outside Counsel which if disclosed, could reveal the substance of legal advice requested or provided, or the legal strategies pursued. The appellant appealed the Region's decision to this office. In his letter of appeal, the appellant stated: I feel that the information requested does not constitute legal advice and in any event, it involves public spending on an issue of significant local importance. In particular, I object to the inclusion of tax money spent by lobbyists within the umbrella of legal advice. This would appear to be a deliberate attempt to hide political actions with a smoke-screen of legal action. I sent a Notice of Inquiry setting out the issues in the appeal to the Region, Gowling, Strathy and Henderson (Gowlings) and 11 other affected persons. I received representations from Gowlings and nine of the other 11 affected parties. I then sent a modified Notice of Inquiry, reflecting the representations received from the Region and the affected parties, to the appellant, who made representations in response. RECORDS: The records at issue in this appeal are described as follows: Record 1 Cover letter dated July 13, 1999 to the Region from Gowling, Strathy and Henderson, enclosing an account for legal services rendered dated July 13, 1999 Record 2 Account for legal services rendered to the Region from Gowling, Strathy and Henderson dated July 28, 1999 Record 3 Account for legal services rendered to the Region from Gowling, Strathy and Henderson dated September 14, 1999 Record 4 Covering memorandum to the Region from Gowling, Strathy and Henderson, enclosing a two-page summary of accounts from 11 consultants, and copies of those accounts ISSUES: SOLICITOR-CLIENT PRIVILEGE Introduction 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: 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). 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: 1. the record must have been prepared by or for counsel employed or retained by an institution; and 2. 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 [12] 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 [12] is not intended to enable government lawyers to assert a privilege which is more
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Legislation
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Subject Index
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Published
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Sep 21, 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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