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Document
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M-842
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Institution/HIC
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The Corporation of the Town of Whitchurch-Stouffville
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Summary
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NATURE OF THE APPEAL: The Corporation of the Town of Whitchurch-Stouffville (the Town) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to the enactment of By-laws 90-111 and 90-112 and Official Plan Amendment No. 84, as well as any documents which pertain to the "appropriate location" of various industrial facilities. The enactment of these by-laws by the Town has resulted in a number of court proceedings and applications before the Ontario Municipal Board over the past six years. The Town located a large number of responsive records and granted access, in whole or in part, to 258 of them. The Town denied access to an additional 98 records, in whole or in part, claiming the application of the following exemption contained in the Act : solicitor-client privilege - section 12 In a further decision letter issued by the Town within the time frames set out in the Confirmation of Appeal, the following additional exemptions were applied to various records: draft by-law - section 6(1)(a) closed meeting - section 6(1)(b) advice or recommendations - section 7 third party information - section 10(1) The appellant appealed the Town's decision to deny access to the requested records. During the mediation of the appeal, the appellant submitted that he was no longer seeking access to the hourly rates contained in Records 49, 50, 51, 90 and 91, which was the only information to which section 10(1) had been applied. As the remainder of the information contained in these documents were disclosed to the appellant, it is not necessary for me to address these records further in this order. This office provided the appellant and the Town with a Notice of Inquiry. Representations were received from both parties. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The Town claims the application of section 12 to Records 12, 14-21, 23-48, 52-64, 67-77, 79, 80, 85, 87, 89, 93, 94 and 96-98. This section consists of two branches, which provide the Town with the 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 the Town 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 Town 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. A record can be exempt under Branch 2 of section 12 regardless of whether the common law criteria relating to Branch 1 are satisfied. 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 the Town; and 2. the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation. I have carefully reviewed the records and the submissions of the parties and make the following findings with regard to the application of section 12: 1. Records 14, 17, 18, 19, 20, 21, 23, 24, 25, 26, 29, 32, 41, 43, 44, 45, 46, 52, 59, 60, 64, 67, 71, 72, 75, 79, 80, 85, 89, 96 and 98 are confidential written communications between the Town and its legal advisors which are directly related to the seeking, formulating or giving of legal advice. As such, each of these records qualifies for exemption under the first part of Branch 1 of the section 12 exemption. 2. Records 27 and 54 were created especially for the lawyer's brief for then-existing litigation. As such, they qualify for exemption under the second part of Branch 1 of the section 12 exemption. In addition, the privilege has not been lost due to the termination or completion of the litigation as the matters to which these records relate remain on-going. 3. Records 34, 55, 56, 57, 58, 73, 74 and 97 were prepared by or for counsel retained by the Town and were prepared for use in giving legal advice, in contemplation of litigation or for use in litigation. These records qualify, therefore, for exemption under Branch 2 of the section 12 exemption. 4. Records 12, 16 and 33 are draft bylaws. The Town has not provided any evidence as to who may have prepared them and to whom they were directed. I am not, accordingly, able to determine whether they qualify for exemption under section 12. 5. Records 28, 37, 42, 69, 70 and 76 are memoranda passing between employees of the Town and notes taken by Town staff at meetings which they attended. These documents do not qualify for exemption under either Branch of the section 12 exemption. 6. Records 30, 31, 39, 47, 48, 53, 61, 62, 63, 68, 77, 87, 93 and 94 are communications to and from the consultants retained by the Town. These documents are not privileged under either Branch 1 or 2 of the section 12 exemption. 7. The Town has claimed the application of Branch 2 of the section 12 exemption to Records 15, 35, 36, 38 and 40, which are communications sent by the Town's counsel to other parties to the litigation or to other governmental bodies. I have not been provided with any evidence as to the circumstances surrounding the preparation of these documents. As such, I find that they do not qualify for exemption under section 12. By way of summary, Records 14, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 29, 32, 34, 41, 43, 44, 45, 46, 52, 54, 55, 56, 57, 58, 59, 60, 64, 67, 71, 72, 73, 74, 75, 79, 80, 85, 89, 96, 97 and 98 are properly exempt from disclosure under section 12. The remaining documents, Records 12, 15, 16, 28, 30, 31, 33, 35, 36, 37, 38, 39, 40, 42, 47, 53, 61, 62, 63,
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Legislation
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MFIPPA
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6(1)(a)
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6(1)(b)
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6(2)(a)
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7(1)
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Section 12
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Subject Index
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Published
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Sep 20, 1996
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Type
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Order
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