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Document
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M-274
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Institution/HIC
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Town of Oakville
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Summary
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ORDER The Town of Oakville (the Town) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records indicating the total cost of legal fees incurred on behalf of the Town in defending an action brought against it by the requester. The Town denied access to this information pursuant to section 12 of the Act . The requester appealed. During mediation it was agreed that a record would be created which indicated the total cost of the action. This dollar figure is the sole information at issue in this appeal. Further mediation was not successful, and notice that an inquiry was being conducted to review the Town's decision was sent to the Town and the appellant. Representations were received from both parties. The sole issue in this appeal is whether the discretionary exemption provided by section 12 of the Act applies to the dollar amount the Town spent in defending the action filed against it by the appellant. This provision reads as follows: 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. The Town claims that the information at issue is exempt from disclosure under Branch 1 of section 12 which provides an institution with the discretion to refuse to disclose a record that is subject to the common law solicitor-client privilege. In order to qualify for exemption under this branch, the Town must provide evidence that the information 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. [Order 49] In its representations, the Town states its position as follows: ... because the record is derived from written communications of a confidential nature by the Town's Insurer's solicitors arising from their defence of an action on behalf of the Town, the substance of the record was generated by counsel employed or retained by an institution relating to the obtaining of legal advice. Accordingly, the Town says that because the accounts themselves constitute communications directly related to seeking, formulating or giving legal advice in connection with the representation of the Town in a legal action, the sum total of all these accounts is privileged. The Town has referred to several judicial decisions which it claims support this proposition. One of these decisions is that of Southey J. in Mutual Life Assurance Company of Canada v. The Deputy [Attorney] General of Canada , [1984] C.T.C. 155 (S.C.O. Motions Court). In that case, the Court was called upon to interpret section 232(1)(e) of The Income Tax Act . In the course of his decision, Southey J. stated in obiter that, were it not for the fact that The Income Tax Act explicitly excluded an "accounting record of a lawyer" from the ambit of solicitor-client privilege, he would have decided that ordinarily a statement of account is a document to which this privilege would apply. In Order P-624, Assistant Commissioner Irwin Glasberg did not consider the Mutual Life decision to represent a binding authority on him for the purpose of interpreting section 19 of the Freedom of Information and Protection of Privacy Act (the provincial Act ), which is similar to section 12 of the Act , to legal accounts. He provided three reasons for this conclusion: ... First, Mr. Justice Southey's comments were provided in obiter. Second, the Mutual Life decision was made in the context of a different legislative scheme to that established under the Act . Third, the ruling in this case appears to be at odds with the position taken by Southey J., on behalf of the Divisional Court, in the case of Re Ontario Securities Commission and Greymac Credit Corp; Re Ontario Securities Commission and Prousky (1983) 41 O.R. (2nd) 328 (Ont. Div. Ct.). At page 337 of that ruling, Mr. Justice Southey states: ... Evidence as to whether a solicitor holds or has paid or received moneys on behalf of a client is evidence of an act or transaction, whereas the privilege applies only to communications. Oral evidence regarding such matters, and the solicitor's books of account and other records pertaining thereto (with advice and communications from the client relating to advice expunged) are not privileged , and the solicitor may be compelled to answer the questions and produce the material. [emphasis added] Like Assistant Commissioner Glasberg, I consider these two cases to be inconsistent. The Town has also made reference to the cases of Re Playfair Developments Ltd. and the Deputy Minister of National Revenue (1985), 85 D.T.C. 5155 and Taves v. Canada [1993] B.C.J. No. 1713 (B.C.S.C.) to support its position that, at common law, legal accounts fall within the common law solicitor-client privilege. Both of these cases also involved a determination by the court of whether certain documents were subject to solicitor-client privilege or fell within the "accounting record of a lawyer" or "supporting voucher or cheque" exception in The Income Tax Act . One of the documents referred to by the Town in the Re Playfair case is merely described as an "account". No further description is provided in the case report. The other document referred to is described as "a letter from the client to the law firm enclosing a cheque to pay an interim account". These documents, with the exception of the cheque, were held to be privileged. However, I note that no reference is made in this case to a document similar to the one at issue in this appeal. In the Taves case, Baker J. considered the Mutual Life and Re Playfair decisions. He concluded that a letter from a law firm to a client dealing with the application of disbursements is not an "accounting record" wit
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Legislation
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Subject Index
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Published
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Feb 23, 1994
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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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