ORDER M-477
Appeal M‑9400058
The Corporation of the Town of Pickering
NATURE OF THE APPEAL:
This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The Corporation of the Town of Pickering (the Town) received a request from the appellant, who is one of the principals of a marina business in the Town. The marina operates on leased property, whose ownership is in dispute. The dispute regarding ownership is the subject of ongoing litigation between the Town and the Attorney General of Ontario, as plaintiffs, and the appellant's landlord and another corporation, as defendants.
The request relates to the appellant's concerns about the ownership of this land. In this regard, the appellant requested access to any and all records containing information pertaining to meetings, negotiations, reports, letters, minutes, recommendations and any other communications which have taken place between the Town and several named corporations and individuals.
A number of records were disclosed in response to the request, and during the appeals process. Access was denied to other records pursuant to the following exemption:
- solicitor-client privilege - section 12.
The records at issue are described in Appendix "A" to this order.
A Notice of Inquiry was sent to the appellant and the Town. Representations were received from the Town. The appellant indicated that instead of making representations in response to the notice, she would rely on previous correspondence sent to the Commissioner's office in connection with this appeal.
The records at issue in this appeal were received by the Commissioner's office after the initial Notice of Inquiry was sent to the parties. A review of the records indicated that the mandatory exemption in section 10(1) of the Act (third party information) might apply to some of the information at issue, which related to several parties (the affected parties) who were not originally notified of this appeal.
Accordingly, a supplementary Notice of Inquiry was sent to the appellant and the Town, inviting them to comment on the possible relevance of section 10(1). In addition, a Notice of Inquiry canvassing all the issues in the appeal was sent to the affected parties. In response to the Notices of Inquiry referred to in this paragraph, representations were submitted on behalf of three of the affected parties.
In addition to the exemptions previously mentioned, the representations provided on behalf of two of the affected parties raised the possible application of the exemption relating to personal information, which appears in section 14(1) of the Act. Because this is a mandatory exemption, I will consider its possible application as well.
PRELIMINARY ISSUES:
STATUS OF APPELLANT
During the inquiry, one of the parties submitted a copy of a Certificate of Dissolution with respect to the corporation on whose letterhead the request was initially made, and that party submits that this should lead to the termination of the appeal. However, in my view, it is a significant factor that the original request was phrased in the first person singular. Moreover, during these proceedings, correspondence has been received on more than one corporate letterhead from the individual who signed the request letter.
The individual who signed the request disputes that the corporation is dissolved at this time. However, she has advised the Commissioner's office that she wishes to conduct this appeal in her personal capacity. In my view, this is not inconsistent with the way the proceedings have been conducted up to this point. Moreover, I am reluctant to rely on a technicality to terminate this appeal, thus forcing the appellant to submit a new request, and likely resulting in a duplication of effort on the part of all concerned. Accordingly, I am prepared to proceed on the basis that the appellant is the individual who signed the request letter, in her personal capacity.
WHETHER THE REQUEST FALLS OUTSIDE THE SCOPE OF THE ACT
The representations submitted by counsel for two of the affected parties argue that the request is outside the scope of the Act because of its relation to an action currently before the Ontario courts. However, counsel offers no authority to substantiate this argument, other than a vague reference to the "purposes of the Act" and a statement that the request is for access to "information which [the requester] is not entitled to have as a non-party to the action, under the guise of a request for information under the provisions of the Act."
I do not agree with this argument. I have reviewed the purposes of the Act, which are set out in section 1. One of these purposes is "to provide a right of access to information under the control of institutions ...". In my view, the request which led to this appeal, and the disclosure already made in response to it, is entirely consistent with this purpose.
Moreover, the fact that the information in question relates to litigation has no bearing whatsoever on whether or not it falls within the scope of this legislation. It is clear that the legislature considered types of information it wished to exclude from the application of the Act, and enacted provisions to accomplish this. For instance, section 52(2) excludes certain types of archival records. Notably, however, no exception from the operation of the Act has been enacted for records which relate to litigation. Instead, the legislature chose to provide an exemption based upon solicitor-client privilege, which is one of the exemptions under consideration in this appeal.
In a related argument, counsel for these same affected parties asserts that the records are not under the control of the Town and are thus outside the scope of the Act. In my view, it is significant that this argument was not raised by the Town, which would be more able to assess the issue of control than the affected parties who have raised this issue. Moreover, based upon the indicators of control established in previous orders (see, for example, Order M-371), and the Town's obvious ability to deal with the records, as it has done throughout this appeal, I am of the view that it does in fact have control of them.
Moreover, in order for the Act to apply to records, it is not necessary for them to be under the control of a government organization; section 17 of the Act creates access rights for records in the custody or under the control of government organizations. In the circumstances of this appeal, it is clear that, in addition to being under the Town's control, copies of the records are also in its custody.
Accordingly, I find that the records at issue are within the scope of the access scheme created by the Act.
DISCUSSION:
SOLICITOR-CLIENT PRIVILEGE
Section 12 consists of two branches, which provide an institution with the discretion to refuse to disclose:
a record that is subject to the 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).
I have reviewed the records and the representations submitted by all parties. This review has resulted in the findings summarized below with respect to the application of this section.
Branch 1
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:
- (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
- the record was created or obtained especially for the lawyer's brief for existing or contemplated litigation.
(Order 49)
I find that the following records are exempt under the first part of Branch 1 of this exemption, since their disclosure would reveal confidential communications between solicitor and client directly related to seeking, formulating or giving legal advice: Records 1.1, 4, 7, 11, 12, 20, 22, 26, 27, 36.2, 36.7, 54 and 55.
I also find that record 21.1 is exempt under the second part of Branch 1 of this exemption (sometimes called the "litigation privilege") because it was created or obtained especially for the lawyer's brief for existing litigation.
Some of the records which would otherwise qualify for the "litigation privilege" aspect of Branch 1 relate to settlement discussions and appear to have been received from or sent to other parties to the litigation. Usually, disclosure of a document to a party adverse in interest would constitute waiver of privilege, but in my view this does not arise with respect to records pertaining to settlement negotiations. On this basis, I find that the following records are also exempt under the second part of Branch 1: Records 1.2, 1.3, 2, 4.1, 6, 8, 9, 10, 13, 14, 16, 18, 19, 20.1, 23, 25, 26.1, 28, 29, 32, 34, 35, 36.4, 36.6, 37, 37.1, 37.2, 38, 39, 40, 41, 42, 44, 48, 49, 52, 53, 53.1, 56, 57, 58, 59 and 60.
Branch 2
I find that Records 3, 5, 15, 17, 21, 24, 30, 31, 33, 43, 45, 46, 47, 50 and 51 are exempt from disclosure under Branch 2 of the section 12 exemption, having been created by or for counsel for the institution for use in existing litigation.
Records which are not exempt under this section
I find that Records 1, 5.1, 36, 36.1, 36.3, 36.5 and 36.8, which consist of council meeting agendas and by-laws, do not qualify for exemption under either Branch 1 or 2 of section 12.
OTHER EXEMPTIONS
At the outset of this order, I indicated that I would consider the possible application of the exemptions in section 10 (third party information) and section 14(1) (invasion of privacy) to the records. The only records which I have found not to be exempt under section 12 of the Act are Records 1, 5.1, 36, 36.1, 36.3, 36.5 and 36.8, and accordingly my consideration of the possible application of these exemptions will be limited to those records.
Before a record can be exempt under section 10(1), one of the elements to be established is that the information to be disclosed must have been "supplied" in confidence to the Town. As noted, the records under consideration consist of council agendas and by-laws. It has not been established that the contents of these records were "supplied" to the Town in any sense, and accordingly, the section 10(1) exemption does not apply to them.
Before a record can be exempt under section 14(1), it must contain "personal information" as defined in section 2(1) of the Act. Many past orders have held that information relating to individuals in their professional, as opposed to personal, capacity, is not personal information. I find that none of the records under consideration with respect to this exemption contains any references to any identifiable individual in a personal capacity. Therefore, none of these records contains personal information. Accordingly, the exemption in section 14(1) does not apply.
Since no other exemptions have been claimed, these records should be disclosed to the appellant.
ORDER:
I uphold the Town's decision to deny access to Records 1.1, 1.2, 1.3, 2, 3, 4, 4.1, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 20.1, 21, 21.1, 22, 23, 24, 25, 26, 26.1, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36.2, 36.4, 36.6, 36.7, 37, 37.1, 37.2, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 53.1, 54, 55, 56, 57, 58, 59 and 60.
I order the Town to disclose the following records to the appellant within thirty-five (35) days after the date of this order, but not earlier than the thirtieth (30th) day after the date of this order: Records 1, 5.1, 36, 36.1, 36.3, 36.5 and 36.8.
In order to verify compliance with Provision 2 of this order, I reserve the right to require the Town to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 2.
Original signed by: February 28, 1995
John Higgins
Inquiry Officer
APPENDIX "A"
INDEX OF RECORDS AT ISSUE
RECORD NUMBER
DESCRIPTION
DISPOSITION
1
Agenda - Special Council Meeting, October 4, 1993
Disclose
1.1
Attachment to Record 1 - Solicitor's Report to Council with draft by‑law, settlement agreement and resolution
Do not disclose
1.2
Attachment to Record 1 - letter to Council from defendants' consultant
Do not disclose
1.3
Chronology of events
Do not disclose
2
Settlement proposal submitted without prejudice to Town by defendants, December 16, 1991
Do not disclose
3
Meeting notes - meeting at defendants' counsel's office, August 9, 1990, re settlement
Do not disclose
4
Letter from Town's counsel to Town, May 26, 1978
Do not disclose
4.1
Enclosure to 4: letter from defendants' counsel to Town's counsel, May 19, 1978
Do not disclose
5
Note enclosing by-law 389/76
Do not disclose
5.1
Enclosure to 5 - by-law 389/76
Disclose
6
Letter to Town's counsel from defendants' counsel, September 20, 1984, re settlement negotiations
Do not disclose
7
Letter to Town from Town's counsel, September 6, 1984
Do not disclose
8
Letter to Town's counsel from defendants' counsel, August 25, 1984, re settlement
Do not disclose
9
Letter to defendants' counsel from Town's counsel, September 6, 1984 re settlement
Do not disclose
10
Letter to defendants' counsel from Town's counsel, August 1, 1984, re settlement
Do not disclose
11
Letter to Town's counsel from Town solicitor, August 7, 1984
Do not disclose
12
Letter to Town solicitor from Town's counsel, June 12, 1984
Do not disclose
13
Letter to Town's counsel from defendants' counsel, June 6, 1984, re settlement
Do not disclose
14
Letter from Town's counsel to defendants' counsel, June 12, 1984, re settlement
Do not disclose
15
Minutes of a meeting between representatives of defendants, Town, Ministry of the Attorney General, March 29, 1984, re settlement
Do not disclose
16
Letter to defendants' counsel from Town's counsel, March 9, 1984, re settlement negotiations
Do not disclose
17
Notes re telephone conversations, meeting, re litigation, February 6, 1984
Do not disclose
18
Letter to Town's counsel from defendants' counsel, February 3, 1984 re settlement
Do not disclose
19
Letter to Town's counsel from defendants' counsel, February 3, 1984 [not including enclosure: Feb 2/81 letter, which was disclosed]
Do not disclose
20
Letter to Town from Town's counsel, January 17, 1984
Do not disclose
20.1
Enclosure to Record 20 - letter to Ministry of the Attorney General from defendants' counsel, January 11, 1984, re settlement
Do not disclose
21
File memo re telephone conversation with Town's counsel - October 14, 1983
Do not disclose
21.1
Photographs
Do not disclose
22
Letter to Town solicitor from Town's counsel, October 13, 1992
Do not disclose
23
Letter directly to defendants from Town solicitor, October 5, 1992, re settlement proposal
Do not disclose
24
Letter to Gardner Roberts from Town solicitor, October 5, 1992
Do not disclose
25
Settlement proposal by defendants, December 16, 1991, with annotations
Do not disclose
26
Letter to Town's counsel from Town solicitor, August 28, 1992, re settlement
Do not disclose
26.1
Enclosure - settlement proposal letter, defendants to Town solicitor, August 21, 1992
Do not disclose
27
Letter to Town's counsel from Town solicitor, August 19, 1992
Do not disclose
28
Settlement proposal working paper
Do not disclose
29
Letter to defendants from Town solicitor, March 31, 1992, responding to settlement proposal
Do not disclose
30
Notes - March 26, 1992
Do not disclose
31
Notes - meeting of August 9, 1990
Do not disclose
32
Letter to Town's counsel from defendants' counsel, June 6, 1985, re ancillary matters
Do not disclose
33
Notes re meeting of April 28, 1994
Do not disclose
34
Draft settlement agreement, undated
Do not disclose
35
Draft settlement agreement, dated May 31, 1993
Do not disclose
36
Agenda, special council meeting of April 18, 1994
Disclose
36.1
Resolution re special meeting, April 18, 1994 (attachment to 36)
Disclose
36.2
Report to Council by Town solicitor (attachment to 36), April 12, 1994
Do not disclose
36.3
By-law 4317/93 (executed)
Disclose
36.4
Same as Record 35
Do not disclose
36.5
Unexecuted copy of by-law 4412/94
Disclose
36.6
Same as Record 34 but with map annexed
Do not disclose
36.7
Minutes - Special Council Meeting of April 18, 1994
Do not disclose
36.8
By-law 4412/94 (executed copy)
Disclose
37
Letter from defendants to Town solicitor, March 23, 1994
Do not disclose
37.1
Letter from Town solicitor to defendants' counsel, March 17, 1994, enclosure to 37
Do not disclose
37.2
Working copy - settlement agreement, March 22, 1994 (enclosure to 37)
Do not disclose
38
Draft settlement agreement, February 14, 1994, annotated
Do not disclose
39
Same as 38, with different annotations
Do not disclose
40
Letter from defendants' consultants to Town solicitor, January 28, 1994, re settlement
Do not disclose
41
Memo from defendants' consultant to Town solicitor, January 17, 1994, re settlement
Do not disclose
42
Memo from defendants' consultant to Town, December 20, 1993, re proposed settlement
Do not disclose
43
Notes of meeting between Town/defendants re settlement, February 8, 1994
Do not disclose
44
Letter to Town, January 10, 1994, with comments, re draft agreement
Do not disclose
45
Meeting notes, January 11, 1994
Do not disclose
46
Meeting notes, December 13, 1993
Do not disclose
47
Meeting notes, November 23, 1993
Do not disclose
48
Memo, defendants' consultant to Town solicitor, November 22, 1993
Do not disclose
49
Letter to defendants from Town solicitor, October 6, 1993, re settlement
Do not disclose
50
Meeting notes - Special Council meeting, September 20, 1993
Do not disclose
51
Meeting notes - Special Council meeting, October 4, 1993
Do not disclose
52
Letter from defendants to Town solicitor, September 27, 1993, re settlement
Do not disclose
53
Letter to defendants from Town solicitor, September 21, 1993, re settlement
Do not disclose
53.1
Same as Record 1.3
Do not disclose
54
Same as Record 1.1
Do not disclose
55
Letter from Town solicitor to Town's counsel, August 12, 1993
Do not disclose
56
Letter from Ministry of the Attorney General to Town solicitor and solicitor for defendants, April 19, 1993, re settlement
Do not disclose
57
Defendants' letter to Town solicitor proposing settlement terms, June 10, 1993
Do not disclose
58
Letter to defendants from Town solicitor, May 5, 1993, re settlement agreement
Do not disclose
59
Memo from defendants to Town solicitor May 5, 1993, re draft settlement agreement
Do not disclose
60
Draft settlement agreement, undated, and covering letter, January 29, 1993 from defendants' solicitor
Do not disclose