|
|
Document
|
|
MO-1616
|
|
|
|
|
|
Institution/HIC
|
|
City of Vaughan
|
|
|
|
|
|
Summary
|
|
NATURE OF THE APPEAL: This is an appeal from a decision of the City of Vaughan (the City), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) made a request for access to various records relating, among other things, to work undertaken at specified street addresses in the City. The background to this request has been described in Order MO-1488. Briefly, the appellant and the City have been engaged in a longstanding dispute which has its origin in changes made to the driveway of the appellant mother's neighbour, and then the construction of a retaining wall by the appellant's mother. The dispute has resulted in legal proceedings, including a charge of contravention of a local by-law against the appellant's mother, building permit processes, and then the initiation of a Small Claims Court action by the appellant's mother against the City. The appellant has been acting as his mother's agent in this action. Initially, the City issued a decision letter in which it took the position that the request was frivolous and vexatious. That decision was appealed, and Order MO-1488 was issued, in which the City was ordered to provide the appellant with a decision on access. A subsequent appeal on the issue of a fee estimate was settled during mediation. The City then issued a decision granting partial access to the records located, and applying the exemptions found in sections 6(1)(b), 12 and 14 of the Act to deny access to the remaining information. The City also informed the appellant that specific records do not exist within certain departments, and that the Mayor's and Councillors' constituency records are not subject to the Act . The appellant appealed the City's decision with respect to certain parts of the request and decision. During mediation through this office, some issues were narrowed or clarified. The only exemption remaining in issue is section 12 of the Act (solicitor-client privilege), and its application to about 174 pages of records located in the office of the City Solicitor. I sent a Notice of Inquiry to the City, initially, inviting it to make representations on the facts and issues in this appeal. The representations of the City were then shared with the appellant, who was also invited to and has made representations in response. RECORDS: The records at issue are described in the appendix to the Notice of Inquiry in this appeal, and consist of memoranda, correspondence, material attached to correspondence (such as newspaper articles and draft documents), email messages, meeting minutes, and legal documents. It should be noted that Record 29 was included in the appendix of records at issue attached to the Notice of Inquiry. However, during the course of mediation, the appellant accepted the application of section 6(1)(b) to those records identified by the City as falling within this exemption, including Record 29. Record 29 is therefore not at issue in this appeal. DISCUSSION: The sole issue in this appeal is whether section 12 of the Act applies to exempt the records from disclosure. Section 12 of the Act 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. 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]. Solicitor-client communication privilege has been found to apply to the legal advisor's working papers directly related to seeking, formulating or giving legal advice [ Susan Hosiery Ltd. v. Minister of National Revenue , [1969] 2 Ex. C.R. 27, cited in Order M-729]. Litigation privilege Litigation privilege protects records created for the dominant purpose of existing or reasonably contemplated litigation [Order MO-1337-I; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.). In Solicitor-Client Privilege in Canadian Law by Ronald D. Manes and Michael P. Silver, (Butterworth's: Toronto, 1993), pages 93-94, the authors offer some assistance in applying the dominant purpose test, as follows: The "dominant purpose" test was enunciated [in Waugh v. British Railways Board , [1979] 2 All E.R. 1169] as follows: A document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, o
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Published
|
|
Feb 26, 2003
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|