ORDER MO-1276
Appeal MA-990183-1
Township of Glenelg
NATURE OF THE APPEAL:
An individual (the appellant), on behalf of a group known as "The Property Owners of Glenelg," submitted a request to the Township of Glenelg (now part of the Township of West Grey) (the Township) under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The request stated:
With reference to the [Township] council meeting minutes dated April 12th, 1999 page 6 "The clerk received another request for further information from [named solicitor] regarding Council's request for him to investigate the liability associated with the letters from the Property Owners in their newsletters and the Durham Chronicle."
[I am seeking] copies of all documentation including council's original request and both replies from Mr. Greenfield, as well as the clerk's response to his request.
The Township denied access to the responsive records on the basis of section 12 (solicitor-client privilege). The appellant appealed the Township's decision to this office.
I initiated the inquiry by sending a Notice of Inquiry to the appellant. After reviewing the representations to me in response, I sent a modified Notice of Inquiry to the Township, together with the appellant's representations. The Township submitted representations in response.
RECORDS:
The records at issue in this appeal are described as follows:
Record 1 Letter to a law firm from the Township dated February 25, 1999, with attachments
Record 2 Letter to the Township from a law firm dated March 17, 1999
Record 3 Letter to the Township from a law firm dated April 6, 1999
Record 4 Letter to a law firm from the Township dated April 15, 1999, with attachment
DISCUSSION:
SOLICITOR-CLIENT PRIVILEGE
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 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).
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 [Orders 49, M-2, M-19].
Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2:
- the record must have been prepared by or for counsel employed or retained by an institution; and
- 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 relies on both solicitor-client communication privilege and litigation privilege. I will first consider the application of solicitor-client communication privilege and then, if necessary, litigation privilege, to the records. In my analysis I will apply common law principles of solicitor-client privilege, without differentiating between the two branches, for the reasons set out above.
Solicitor-client communication privilege
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), 1982 CanLII 22 (SCC), 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 communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communications and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do." But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.
[Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P-1409]
The appellant argues, in effect, that solicitor-client communication cannot apply to the records, since their contents were discussed at open Township council meetings, as reflected in minutes of those meetings. In support of this argument, the appellant provided me with relevant excerpts from minutes of meetings dated February 17, 1999 and April 12, 1999. The appellant also provided me with a copy of minutes from a June 28, 1999 council meeting indicating that the meeting went into closed session to discuss a topic relating to litigation or potential litigation, to support her assertion that council could have gone into closed session regarding the matters discussed in open session on February 17 and April 12. In addition, the appellant referred to sections 55(5)(e) and (f) of the Municipal Act which read:
A meeting or part of a meeting may be closed to the public if the subject matter being considered is,
(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;
(f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
The Township submits:
Surely there is no need for Council to go in camera to decide to seek a legal opinion. Granted, when Council is considering the legal opinion, or correspondence relating to it, it would be wise for the Council to go in camera, and this would be a further recognition of the importance of the privilege. However, surely the [appellant] cannot make something out of the fact that each and every statement about getting a legal opinion on a matter was not discussed in camera.
I have reviewed the four records at issue, and having compared them to the council minutes of February 17, 1999 and April 12, 1999, I find that the requirement of confidentiality for solicitor-client communication privilege has not been met with respect to Records 1 and 4. In my view, Record 1 reveals no more information of substance than is revealed in the minutes of the February 17, 1999 open council meeting, or that is not already of a public nature (e.g., the newspaper and newsletter excerpts attached to the Township's covering letter). Likewise, Record 4, consisting of a covering letter and attached excerpts from minutes of the April 12, 1999 open council meeting, reveals no more than is contained in the April 12, 1999 minutes which are publically available.
However, Records 2 and 3 are distinguishable from Records 1 and 4. I am satisfied that these records are confidential communications between the Township and the Township's solicitor made for the purpose of providing or obtaining professional legal advice on a matter concerning the group represented by the appellant. Each of the records is part of the "continuum of communications" between a solicitor and client as described in Balabel. In contrast to Records 1 and 4, there is no indication that the information in Records 2 and 3 was discussed at an open council meeting. As a result, I am satisfied that Records 2 and 3 qualify for exemption under section 12 on the basis of solicitor-client communication privilege.
Litigation privilege
The Township submits that litigation privilege applies to the records at issue. Since I found above that Records 2 and 3 qualify for exemption under section 12 on the basis of solicitor-client communication privilege, it is not necessary for me to consider whether they also qualify for litigation privilege. Thus, I will consider the application of this head privilege only to Records 1 and 4. Litigation privilege was described in Order P-1551 as follows:
Litigation privilege, often referred to as the "work product" or "lawyer's brief" rule, protects documents which are not direct solicitor-client communications, but which are "derivative" of that relationship. This includes communications between the solicitor or the client and third parties, documents generated internally by the solicitor or the client, or documents compiled for a lawyer's brief, where the dominant purpose for which they were created or obtained is existing or reasonably contemplated litigation. Litigation privilege applies only if the document was made or obtained with an intention that it be confidential in the course of the litigation [emphasis added].
In my view, for the reasons outlined above under "Solicitor-client communication privilege", litigation privilege cannot be found to apply to Records 1 and 4 because the requisite element of confidentiality is not present. As a result, it is not necessary for me to determine whether or not these records otherwise would meet the test for litigation privilege as described above.
Conclusion
Based on the above, I conclude that Records 2 and 3 are exempt under section 12, while Records 1 and 4 are not so exempt.
ORDER:
- I order the Township to disclose Records 1 and 4 to the appellant no later than March 21, 2000.
- I uphold the Township's decision to withhold Records 2 and 3 from the appellant.
February 16, 2000
David Goodis Senior Adjudicator