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Document
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MO-1371
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Institution/HIC
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Amherstburg Police Service
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Summary
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NATURE OF THE APPEAL: The appellant submitted a seven part request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) to the Town of Amherstburg (the Town). The Town then transferred portions of the request (items 1, 3, 4, 5, 6 and 7) to the Amherstburg Police Services Board (the Police). The portions of the request transferred to the Police read as follows: 1. Copies of any and all correspondence from May 1, 1998 to today's date, from the Town and [the Police] to the [Ontario Civilian Commission on Police Services] and Ministry of Solicitor General pertaining to the delivery of police services in the town. 3. The dollar amount of any and all legal fees incurred by the town as a result of the civil suit filed by [named individual] against [the Police] chief and [Police]; including, but not limited to, advice, court appearances, motions, correspondence, preparations, etc. 4. The dollar amount of any and all legal fees associated with the judicial review of March 19, 1998. 5. The dollar amount of any and all legal costs incurred by the town pertaining to the [ Police Services Act ] hearing of [named individual]; including, but not limited to, preparation, appearances, prosecutor's fees, prosecutor expenses including travel. 6. The dollar amount of any and all costs associated with the internal investigation conducted by London Police Service in the fall of 1997. 7. The 1998 contract between the [Amherstburg Police Association] and the [Police]. In response, the Police stated: A decision has been made to grant you full disclosure to correspondence between the Town, [the Police] to the OCCPS and Ministry of the Solicitor General pertaining to the delivery of police services in the [Town]. Partial access is being granted in relation to the dollar amounts for legal fees incurred by the Town (refer to items 3 through 5 in your [request] letter). Access is denied to the record pursuant to Section 12 - Solicitor Client Privilege ... The appellant appealed the decision of the Police to withhold portions of records responsive to items 3, 4 and 5 of the request. I sent a Notice of Inquiry setting out the issues in the appeal to the appellant, who provided representations in response. In the circumstances, I determined that it was not necessary to seek representations from the Police. RECORDS: The records at issue in this appeal consist of withheld portions of accounts and reporting letters submitted to the Police by two lawyers for the Police. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE Introduction 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: a record that is subject to common law solicitor-client privilege (Branch 1); and 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). 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 . . . 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.)]. Thus, 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 demonstrated that one or the other, or both, of these heads of privilege apply to the records at issue. Solicitor-Client Communication Privilege Introduction My review of the records and the surrounding circumstances indicate that the common law solicitor-client communication privilege may apply. This 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 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 commu
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Legislation
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Subject Index
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Published
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Nov 29, 2000
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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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