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Document
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MO-1223
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Institution/HIC
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Township of Carling
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Summary
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NATURE OF THE APPEAL: The appellant wrote to the Township of Carling (the Township) seeking access to several records concerning issues relating to access to the appellant's property, including a letter to the Township from its solicitor. The appellant's letter made no specific reference to the Municipal Freedom of Information and Protection of Privacy Act (the Act ). In its reply, the Township stated: . . . [The solicitor who wrote this correspondence] was requested to give his opinion on the letter of objection filed by you and [your husband] with respect to the closing of a portion of [a] road allowance . . . It has been determined that this is [a] privileged communication between the [Township] and the solicitor and it will not be released. As requested, enclosed is a copy of the [Township's] request to [the solicitor] for an opinion. The Township's reply also addressed other records not directly at issue in this appeal. Later the appellant wrote to the Township and specifically requested access under the Act to the solicitor's letter (the record). The Township replied to the appellant's request by stating that it was denying access to the record on the basis of section 12 ("solicitor-client privilege"). The Township further stated that "the record is a communication between [the Township] and its legal advisor containing legal advice." The appellant appealed the Township's decision to this office. During the intake stage of the appeal, the appellant suggested that the Township had waived privilege with respect to the record. I sent a Notice of Inquiry setting out the issues in the appeal to the Township and the appellant. I received representations from both parties. RECORD: The record at issue consists of a three page letter to the Township from its solicitor concerning a proposed Township by-law closing a road allowance. DISCUSSION: 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 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 Township has not specified whether it is relying on solicitor-client communication privilege or litigation privilege. However, the Township's representations, and the context of this appeal, suggest that only the former could apply. Solicitor-client communication privilege General principles At common law, 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]. This privilege has been described by the Supreme Court of Canada 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 t
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Legislation
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Subject Index
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Published
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Jul 05, 1999
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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