Citation and Court Information
CITATION: Corporation of the City of Kitchener v. Information and Privacy Commissioner of Ontario, 2012 ONSC 3496
DIVISIONAL COURT FILE NO.: 411/10
DATE: 20120613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SACHS AND HERMAN JJ.
BETWEEN:
THE CORPORATION OF THE CITY OF KITCHENER Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, ADJUDICATOR JENNIFER JAMES and TERRY PENDER Respondents
Counsel:
Corinn Shantz, for the Applicant
William S. Challis, for the Respondent, Information and Privacy Commissioner of Ontario
Terry Pender, In Person
HEARD at Toronto: June 13, 2012
Oral Reasons for Judgment
SACHS J. (orally)
[1] The applicant, The Corporation of the City of Kitchener (the “City”), brings an application for judicial review of the respondent, Information and Privacy Commissioner of Ontario’s (the “Commissioner”) order dated November 5, 2009.
[2] In her decision the Commissioner ordered the City to disclose certain records relating to its purchase of a property from a land developer (“affected party”) and upheld its decision to deny access to other records. She found that the records she ordered be disclosed do not qualify for exemption under s. 10(1) (third party information) or s. 12 (solicitor/client privilege). She also ordered the City to charge a reduced fee for processing the request.
[3] The applicant seeks an order setting aside the Commissioner’s decision requiring it to disclose certain records and refund part of its search fee.
[4] It is accepted that the standard of review applicable to the Commissioner’s decisions concerning the fee estimate at s.45 and the exemption at s.10(1) is reasonableness and that the standard of review applicable to the Commissioner’s decision concerning solicitor/client privilege under s.12 is correctness.
Was the Commissioner’s Decision Concerning the Fee Reasonable?
[5] The applicant submits that the Commissioner unreasonably concluded that the City should not have had to spend 13.5 hours looking for documents that were ultimately found in the City Solicitor’s file. According to the applicant, the City could not have known in advance that this was the only place where all of these documents would be located. At page 9 of her decision the Commissioner dealt with this argument as follows:
I have carefully reviewed the City’s representations along with the 185 records. Given that all of the 185 records were located in the City Solicitor’s files, I find that 13.5 hours is not a reasonable amount of time to locate records maintained in one location. The City claims that some of its search time was divided among five staff members searching other locations for responsive records. However, the City’s evidence did not explain how it keeps and maintains hardcopy and electronic correspondence related to the sale transaction, nor did it identify the other locations that were searched. The City also did not explain what actions were necessary to locate such records or the actual amount of time each action involved. In addition, the City offers no explanation as to why no other records were located, given its advice that many staff members were involved with the project. Given that there is no evidence before me which identifies locations or record holders, other than the office of the City Solicitor, I find that the City search fee of $405.00, representing 13.5 hours of search time, is not in accordance with the Act.
[6] In our view, given the evidence before her, the Commissioner’s reasoning regarding the 13.5 hours in question was reasonable.
[7] The applicant also submitted that the Commissioner unreasonably reduced the fees because the City did not warn the requestor in advance of the possibility or likelihood that it would withhold a substantial portion of the responsive records. According to the City, they could not have known in advance whether or not any of the responsive records that it located would be withheld from the requestor. The City made the same argument before the Commissioner and, in our view, the Commissioner reasonably addressed the issue at page 13 of her decision. In the course of her reasons she found that by failing to advise the requestor about the likelihood of the exemption being claimed, the requestor incurred costs that he might not otherwise have chosen to incur.
[8] We have no basis for concluding that the Commissioner’s finding in this regard was unreasonable and in our view it is immaterial that the requestor was a reporter who had made prior MFIPPA requests.
Were the Commissioner’s findings regarding the s.10(1) exemption reasonable?
[9] The applicant submits that the Commissioner’s decision on this question was unreasonable because she ignored the fact that at the time of the request the transaction had not been completed and she ignored the fact that the third or affected party retained adjacent land for sale.
[10] We disagree. With respect to the first submission, the Commissioner was clear that she had been advised that the transaction had closed and that, because of this, the City was no longer claiming an exemption under s.11 of the Act. The Commissioner then followed long-standing decisions holding that records reflecting contractual terms negotiated between an institution and an affected party are generated in the give and take of negotiations and cannot be said to be “supplied” by either party.
[11] The Commissioner dealt with the applicant’s second submission at page 19 of her reasons and found that:
The evidence the affected party provided to me did not specify which portions of the records contain information about its negotiating strategies or how disclosure would reveal how it conducts its business. The affected party also did not identify the portions of the records which contain information, that, if disclosed, would thwart its efforts to subdivide the remaining lands.
[12] We have been given no basis upon which we could conclude that these findings were unreasonable. Furthermore, in view of these findings the Commissioner reasonably concluded that there was no need for her to address the last part of the test for a s.10(1) exemption.
Was the Commissioner’s decision regarding solicitor/client privilege correct?
[13] The Commissioner categorized the 185 records at issue into five broad categories. The City only challenges her decision with respect to two of these categories – (1) communications that do not involve the City Solicitor and (2) communications between the City Solicitor and the affected party.
[14] Record 137 is the only record falling within the first of these two categories. The respondents concede that Record 137 was in fact a communication involving the City Solicitor, (although it is not readily apparent on the face of the document) and, therefore, it falls within the s.12 exemption and should not be disclosed.
[15] What remains to be addressed are the communications between the City Solicitor and the affected parties. The parties have agreed that six, or portions of six, of the documents that the Commissioner ordered disclosed under this category do fall within the s. 12 exemption as they were actually communications between the City Solicitor and other employees of the City.
[16] With respect to the rest of the documents in this category, we reject the City’s suggestion that solicitor/client privilege can extend to communications between a solicitor and the party on the other side of the transaction, in this case, the affected party.
[17] The City and the affected party do not share a solicitor/client relationship and the records are not direct communications of a confidential nature between a solicitor and client or their agents or employees made for the purpose of obtaining or giving professional legal advice. Thus, we agree with the Commissioner that communications between the City and the affected party do not qualify for the s.12 exemption.
[18] The Commissioner redacted the top portion of Record 86 and the respondents concede the top portion of Record 85 should also be redacted for the sake of consistency. We make that order.
[19] The respondents also concede that parts of Records 2, 18, 76, and 100 and all of Records 166 and 137 are not properly categorized because they are communications to or from the City Solicitor and the City. They are within the ambit of the solicitor/client relationship and qualify for the exemption under s.12. We order that these documents or portions of documents need not be disclosed to the requestor.
[20] Subject to these specific exceptions with respect to these seven documents, the application for judicial review is dismissed.
ASTON J.
[21] I endorse the Record on behalf of the panel as follows: “Oral reasons were given and recorded. The application is allowed in part:
The top portion of Record 85 is to be redacted in the same manner as Record 86;
Parts of Records 2, 18, 76, 100, 166 and 137 are exempted from disclosure (see schedule following) and the schedule indicates that the redacted portions of those documents are the top email in document #2; the top emails in document #18; the top email in document #76; the top 2 emails of document #100; and all of documents #166 and #137;
The application is otherwise dismissed;
The applicant is to pay the respondent Terry Pender costs fixed in the amount of $10,000 all inclusive.”
SACHS J.
ASTON J.
HERMAN J.
Date of Reasons for Judgment: June 13, 2012
Date of Release: June 22, 2012
CITATION: Corporation of the City of Kitchener v. Information and Privacy Commissioner of Ontario, 2012 ONSC 3496
DIVISIONAL COURT FILE NO.: 411/10
DATE: 20120613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SACHS AND HERMAN JJ.
BETWEEN:
THE CORPORATION OF THE CITY OF KITCHENER Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, ADJUDICATOR JENNIFER JAMES and TERRY PENDER Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: June 13, 2012
Date of Release: June 22, 2012