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Document
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MO-1555
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Institution/HIC
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Township of Southgate
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Summary
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NATURE OF THE APPEAL: This is an appeal from a decision of the Township of Southgate (the Township), under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester had sought access to the letter sent to the Township's solicitors regarding an opinion on how to ban biosolids in the Township, as well as the response to that letter. The Township located several letters from and to its solicitors on the issue identified in the request. In its decision, the Township denied access to the records, relying on the discretionary exemption under section 12 (solicitor-client privilege) of the Act . Mediation through this office did not result in a resolution of the issues, and the matter was referred to adjudication. The Township was sent a Notice of Inquiry, inviting it to make representations on the facts and issues raised by the appeal. It did not make any representations. The requester (now the appellant) was then provided with an opportunity to make representations, and did. I decided that the Township should be given an opportunity to submit reply representations on the issue of waiver of the solicitor-client privilege, raised by the appellant, and to that end, I sent it the appellant's representations. The Township provided me with reply representations on that issue. RECORDS: The records consist of a letter from the Township's solicitors to the Township dated May 23, 2001, a faxed memo from the Township to the solicitors (with attachments) dated May 26, 2001, a letter from the solicitors to the Township dated May 28, 2001, a letter from the Township to the solicitors dated July 30, 2001, a faxed memo from the solicitors to the Township dated July 30, 2001, a faxed memo from the Township to the solicitors (with attachment) dated August 10, 2001, and a faxed memo from the solicitors to the Township dated August 21, 2001. DISCUSSION: The only issue in this appeal is whether section 12 applies to exempt the records from disclosure. Section 12 states: 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. Section 12 encompasses two heads of privilege, as derived from the common law: (i) solicitor-client communication privilege; and (ii) litigation privilege. In order for section 12 to apply, it must be established that one or the other, or both, of these heads of privilege apply to the records at issue. I am satisfied that only solicitor-client communication privilege is relevant on the facts of this case. 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]. The Supreme Court of Canada has described this privilege 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] The privilege has been found to apply to "a continuum of communications" between a solicitor and client: . . . the test is whether the communication or document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communications and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do." But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context [ Balabel v. Air India , [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P-1409]. The appellant is a member of the Ad Hoc Advisory Committee on Biosolids, appointed by the Council of the Township to seek out information about biosolids and make recommendations to Council on the issue. The Committee is comprised of the Mayor, two councillors, and four other members, including the appellant. The appellant states that as a member of this committee, he made a request that a legal opinion be sought on how the Township might place a moratorium on the spreading of biosolids in the Township. In fact, it appears from the material before me that this request was incorporated into the report of the Committee to Council, which report recommends that "Council seek legal and planning advice" on the issue. Council did make a request to its solicitors for an opinion, and an opinion was provided. This is the record dated May 23, 2001. Following this, there was further correspondence between the Township and the solicitors on the same issue, which is reflected in the other records. The appellant submits that the Committee of which he is a member is a part of Council, and on that basis, he is entitled to have access to the solicitors' opinion. Further, he also believes that the Committee, as the source of the request for an opinion, is the client. As a member of that Committee, he is entitled to the same access to the opinion as the Councillors who are members of the Committee. I am satisfied that the "client" in this case is the Township, and not the Committee. It is apparent from the correspondence that the solicitors' opinions are addressed to the Township, either to the Mayor and the members of the Council directly, or through the Treasurer-Deputy Clerk. I do not preclude the possibility that a Committee of a Council may be a "client" in a given circumstance, and I do not have to decide whether it is within the powers of an ad hoc committee of Township Council to retain a solicitor to provide a legal opinion. I am satisfied, on the facts of this case, that the Township itself sought out the legal opinion, and that the opinion was provided to the Township and not the Committee. In the overall context, this is not surprising, si
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Legislation
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Subject Index
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Published
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Jul 04, 2002
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Type
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Order
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