CITATION: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2016 ONSC 6913

DIVISIONAL COURT FILE NO.: 442/15 DATE: 20161115

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. GORDON R.S.J., NORDHEIMER and C. HORKINS JJ.

BETWEEN:

MINISTRY OF THE ATTORNEY GENERAL Applicant

– and –

INFORMATION AND PRIVACY COMMISSIONER AND MARCUS MCCANN Respondents

Sara Blake and Emtiaz Bala, for the Applicant

Lawren Murray, for the Respondent, the Information and Privacy Commissioner

Marcus McCann, appearing in person

HEARD at Toronto: October 4 2016

C. hORKINS J.

Overview

[1] The Ministry of the Attorney General (“MAG”) seeks judicial review of Order PO-3514 (“Order”) that the Information and Privacy Commissioner (“Commissioner”) issued on July 28, 2015.

[2] The Order directed disclosure of a draft guideline that an Assistant Crown Attorney prepared. The draft guideline provided information and advice to other Assistant Crown Attorneys for the prosecution of cases concerning HIV exposure and transmission.

[3] Marcus McCann (“Requester”) had sought production of the draft guideline as part of a freedom of information request for, among other things, “all documents … related to the prosecutorial guidelines for HIV nondisclosure” and “any advice provided to the government on HIV and the criminal prosecutions.”

[4] MAG refused to disclose the draft guideline, relying on exemptions under ss. 19(a) and (b) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). Sections 19(a) and (b) state:

19. A head may refuse to disclose a record,

(a) that is subject to solicitor-client privilege;

(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

[5] When MAG refused to produce the draft guideline, the Requester appealed to the Commissioner. He argued that the draft guideline was not privileged, or if it was, that the privilege was waived when the Assistant Crown Attorney shared the draft guideline with the Sexual Health and Harm Reduction Program Manager of the City of Hamilton (the “Manager” or the “Public Health Authority”).

[6] The Commissioner found that the draft guideline originated in solicitor-client privilege and therefore qualified for an exemption under s. 19 of FIPPA. However, the Commissioner held that the s. 19 protection was lost because the Assistant Crown Attorney waived the privilege by giving a copy of the draft guideline to the Manager. Delivering the draft guideline to the Manager was not solicitor-client communication and the Manager and Assistant Crown Attorney did not share a common interest that would maintain the privileged nature of the draft guideline. As a result, the Commissioner ordered disclosure of the draft guideline.

Standard of review

[7] The parties do not agree on the standard of review. MAG asserts that the standard of review is correctness and the respondents assert that the standard of review is reasonableness. As explained, I agree that the standard of review is reasonableness.

[8] MAG relies principally on the decision of this court in Ontario (Liquor Control Board) v. Magnotta Winery Corp. (2009), 2009 92118 (ON SCDC), 97 O.R. (3d) 665 (Div. Ct.), aff’d 2010 ONCA 681, (2010) 102 O.R. (3d) 545 (C.A.), where the court applied a standard of review of correctness. There are two problems with this reliance. First, in that case the parties agreed that the standard of review was correctness. Undoubtedly, because of that agreement, there is no analysis of the standard of review issue in the decision, which leads to the second problem. The decision does not make any reference to what was then the very recent decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. In Dunsmuir, of course, the court said, at para. 54:

Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 148 (SCC), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, at para. 39.

[9] Admittedly, the Commissioner has to be correct in his understanding or enunciation of the parameters of privilege, since privilege is a matter of general law that is of central importance to the legal system. However, while the Commissioner must be correct in his understanding of the elements of privilege, the application of privilege, or other matters of general law, to the proper interpretation of a tribunal's home statute is entitled to deference. Thus, the standard of review on that exercise is reasonableness. As the Supreme Court of Canada also said in Dunsmuir, in the same paragraph:

Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72.

[10] In this case, we have numerous decisions to show that the Commissioner is called upon frequently to apply s. 19 of FIPPA and determine whether information is protected from disclosure because of privilege. There is no doubt that the Commissioner has a particular expertise in the analysis of privilege that arises in this case.

[11] Lastly on this point, MAG points to the fact that the correctness standard of review was applied in Ontario (Attorney General) v. Big Canoe (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167 (C.A.) and Ontario (Attorney General) v. Big Canoe (2006), 2006 14965 (ON SCDC), 80 O.R. (3d) 761 (Div. Ct.) (“Big Canoe 2006”). Both cases raised issues similar to the ones raised before this court. These decisions pre-date the decision in Dunsmuir and the later decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (“Alberta Teachers”), where the court held that where an administrative tribunal is interpreting or applying its home statute"it should be presumed that the appropriate standard of review is reasonableness" (para. 39). The Big Canoe decisions also pre-date two other decisions of the Supreme Court of Canada, both of which held that “… a reasonableness standard of judicial review generally applies to decisions by the Commissioner interpreting and applying disclosure exemptions under FIPPA” (citations omitted): see Ontario (Ministry of Community Safety & Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 S.C.R. 674, at para. 26; Criminal Lawyers' Association v. Ontario (Ministry of Public Safety & Security), 2010 SCC 23, [2010] 1 S.C.R. 815.

[12] Consequently, the Big Canoe decisions cannot be safely relied upon for the appropriate standard of review. Indeed, it is difficult to distinguish the case here from that in Ontario (Ministry of Community Safety & Correctional Services) v. Ontario (Information and Privacy Commissioner), supra on this point.

The Commissioner’s Decision

[13] The Commissioner’s detailed reasons describe the draft guideline in issue, explain the distinction between ss. 19(a) and (b) and how privilege can be waived for the purposes of s. 19, review the representations of the parties and provide analysis and findings. The Commissioner’s reasons are reviewed below.

[14] The purpose of the two branches of s. 19 was not in dispute before the Commissioner. Branch one shields from disclosure, records that are subject to common law solicitor-client and litigation privilege. Branch two creates statutory solicitor-client and litigation privilege. As MAG stated in its representations to the Commissioner at para. 7:

The statutory and common law privileges, although not necessarily identical, exist for similar reasons….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 the purpose of obtaining legal advice whether in contemplation or litigation or not, as well as for all documents prepared in contemplation of or for use in litigation.

[15] The Commissioner found that litigation privilege did not apply to the draft guideline. While the Assistant Crown Attorney prepared the draft guideline working on the R. v. Aziga case, MAG did not provide “sufficiently detailed and convincing evidence” to prove that it was “prepared predominantly for use in that case or any other specifically contemplated litigation.” MAG’s representations emphasized that the draft guideline was “a document created for a more general purpose” and that “[f]irst and foremost, it [was] a document created by, and for, Crown counsel in giving legal advice.”

[16] Turning to solicitor-client privilege, the Commissioner relied on the case of Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2013 ONSC 1789, where Belobaba J. distinguished between legal advice, which was found to be subject to solicitor-client privilege, and legal information, which was not. The Commissioner found that the draft guideline was more “legal advice” than “legal information”, and therefore qualified for an “exemption under s. 19”.

[17] The Commissioner then reviewed the issue of waiver and the consequences, if any, of sharing the draft guideline with the Manager.

[18] MAG’s position on waiver of privilege was considered. It argued that privilege was not waived for two reasons. First, the draft guideline was given to the Manager to obtain her “expert input” concerning the content. The Assistant Crown Attorney wanted to be sure that the draft guideline was accurate from a public health perspective and she and the Manager had a history of consulting with one another. Second, MAG argued that there was no waiver of the privilege because MAG and the Manager/Public Health Authority shared a common interest: the reduction of harm and the protection of society. In making these submissions, MAG did not distinguish between privilege for the purposes of ss. 19(a) and (b).

[19] The Commissioner reviewed the legal principles set out in General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321 (C.A.). This decision addresses communications with a third party and when privilege will be maintained over the communications. First, not every communication between a lawyer and a third party that facilitates or assists in giving or receiving legal advice, is protected by solicitor-client privilege. Second, when “the third party serves as a channel of communication between the client and solicitor, communications to or from the third party by the client or solicitor will be protected by the privilege as long as they meet the criteria for the existence of the privilege.” When the third party is not a “channel of communication” General Accident Assurance Co. v. Chrusz directs at pg. 356:

… that the applicability of client-solicitor privilege … should depend on the true nature of the function that the third party was retained to perform for the client. If the third party's retainer extends to a function which is essential to the existence or operation of the client-solicitor relationship, then the privilege should cover any communications which are in furtherance of that function and which meet the criteria for client-solicitor privilege.

[20] While the Commissioner accepted that the draft guideline originated “within the context of a privileged communication”, it rejected MAG’s position that the draft guideline constituted solicitor-client communication because it was given to the Manager in confidence to obtain her expert input. This argument failed because MAG did not provide sufficient evidence. At paras. 96-97 of the Order, the Commissioner reviewed the absence of evidence:

[96] No evidence was provided that the Assistant Crown Attorney was acting without the authority of the ministry when the draft was shared. While there is evidence of the manager’s experience in the area, it is clear that the manager was not a client of the Assistant Crown Attorney. It is also clear on the evidence that the manager was not formally retained by the Assistant Crown Attorney to provide an opinion and/or input on the draft. There was no indication that the draft was provided to the manager with any cover letter setting out expectations and/or limitations for its use. I was not provided with any affidavits from the Assistant Crown Attorney or the manager explaining what the exact expectations were surrounding the sharing. Was the manager to comment on the guideline, suggest changes or simply read it? The ministry did not provide me with any evidence about whether the manager provided actual input or if the draft was changed in some way as a result of her input.

[97] With respect to expectations of confidentiality surrounding the sharing of the draft, no objective evidence was provided that it was shared in confidence. While the ministry makes bald assertions of confidentiality, no affidavit was provided in support of these assertions, there are no notations of confidentiality on the record itself and there are no documents that suggest that the guideline was provided in confidence. As set out above, I was not provided with a copy of any cover letter from the Assistant Crown Attorney setting out any limitations on its use. The manager’s email regarding it being “shared with us” is silent regarding any expectation of confidentiality. In fact, it suggests that the draft may have been shared with other people beyond the manager in question. In my view, if the ministry wished to establish a confidentiality claim, more should have been provided.

[21] The Commissioner then reviewed and rejected MAG’s common interest argument. The Commissioner found that there was no “similar commonality of interests in … the sharing of the draft guideline” between MAG and the Public Health Authority, to withstand waiver of privilege. Further, the Commissioner found that MAG and the Public Health Authority “have very different statutory and practical mandates.” Specifically, the draft guideline relates to MAG’s “role in deciding how and when to prosecute individuals for breaches of the Criminal Code. In contrast, public health authorities are broadly responsible for protecting and promoting health of a given population.”

[22] The Commissioner also found that the proposed common interest was “too broad”. If accepted, it would “permit the ministry to disclose this record to thousands of individuals or organizations whose mandate includes the reduction of harm and protection of society, while still maintaining privilege.” MAG offered no authority to support “such a dramatic expansion of ‘common interest’.”

[23] The Commissioner concluded that ordering the disclosure of the draft guideline would “not undermine the rationale for solicitor-client privilege or its purpose” because MAG “remains free to properly retain and instruct counsel and retain and instruct experts or engage in formal consultations.”

Grounds of Judicial Review

[24] MAG argues that the Order should be quashed or set aside for three reasons. While MAG frames the reasons as errors of law, the standard of review, as noted, is reasonableness.

[25] The first ground deals with the question of who can waive privilege under s. 19. MAG argues that under ss. 19(a) and (b), only the “head” can waive privilege. Section 2 of FIPPA defines “head” in the case of a Ministry as “the minister of the Crown who presides over the ministry.” Since there was no evidence that the Minister, or a delegate, authorized disclosure of the draft guideline, MAG argues that the Commissioner erred in finding that the Assistant Crown Attorney waived privilege.

[26] The second ground of review is connected to the first. MAG states that the Commissioner failed to consider its position that the statutory exemption under s. 19(b) applied. Alternatively, MAG states that the Commissioner conflated ss. 19(a) and (b) in the reasons and applied common law waiver to both subsections. MAG argues that it is an error to apply the common law of waiver to the statutory solicitor-client privilege under s. 19(b), because only the “head” can waive the privilege. MAG argues that Big Canoe 2006 supports this argument.

[27] Lastly, MAG argues that the Commissioner erred in finding that the solicitor-client privilege necessary to ground an exemption under s. 19, was lost when the Assistant Crown Attorney shared the draft guideline with the Manager, because there was no common interest between them.

[28] Before this court, MAG did not pursue its argument that the Commissioner erred in rejecting MAG’s position that the privilege was not waived because the Manager was an expert.

analysis

Authority to Waive Privilege / Consideration of s. 19(b)

[29] Since the first two grounds of review are related, I will deal with them together. Briefly, these grounds raise the following questions:

(i) Who can waive privilege for the purposes of the s. 19 exemption? (I will refer to this as the “waiver by head” issue). MAG states that only the head can waive this FIPPA exemption.

(ii) Does the common law rule of waiver apply to the statutory privilege created by s. 19(b)? MAG states that it does not apply.

(iii) Did the Commissioner fail to consider s. 19 (b) or conflate it with s. 19(a)?

[30] The respondents argue that (i) and (ii) are new arguments that MAG did not raise before the Commissioner. They argue that MAG should not be permitted to raise the new issues on this judicial review application. MAG states that the issues are not new.

[31] I will address the respondents’ objection first. The starting point is the record. It reveals that MAG did not raise issues (i) and (ii) before the Commissioner. The record also shows that MAG did not distinguish between ss. 19 (a) and (b) in its representations to the Commissioner.

The Record

[32] When the Requester’s appeal reached the inquiry stage, the Commissioner sent a letter to MAG requesting written representations. The Commissioner’s Code of Procedure explains that representations consist of evidence and argument and may include any unsworn or sworn statements of fact, statements of law and other information relevant to the issues on the appeal.

[33] The Commissioner’s letter enclosed the Notice of Inquiry that summarized the facts and issues in the appeal. If MAG had any “additional factors” beyond those listed in the Notice of Inquiry, it was directed to refer them to the Commissioner. MAG did not refer any additional factors to the Commissioner.

[34] The Commissioner’s letter explained that MAG’s representations should include “all of the arguments, documents and other evidence” that MAG was going to rely on in the appeal. At the end of the Notice of Inquiry, the parties were requested to “submit with their representations any background materials, documentation, policies, statutory provisions, by-laws or case authorities, which support their representations.” The letter explained that this was important because the Commissioner would not contact MAG again, unless its representations required clarification.

[35] I pause to observe that the Notice of Inquiry made it abundantly clear to MAG that its representations were to be as detailed and expansive as MAG deemed necessary.

[36] The Notice of Inquiry explained that the sole issue was whether the draft guideline was exempt from production under ss. 19(a) or (b). The Notice of Inquiry posed this question: “Do the discretionary exemption[s] at sections 19(a) and (b) apply to the records?” The Notice of Inquiry then reviewed the type of privilege that each branch addresses and how privilege can be lost.

[37] The Notice of Inquiry raised various questions and asked the parties to respond. Dealing with waiver under branch one, the Notice of Inquiry asks “[h]as privilege been lost through waiver?”

[38] The Notice also set out statements of law and procedure without posing questions. For example, it makes statements, but does not pose questions about statutory privilege under s. 19(b) or severance under s. 10(2) of FIPPA.

[39] Dealing with s. 19(b), the Notice of Inquiry described this section as creating statutory solicitor-client privilege and statutory litigation privilege. Under the heading of “Loss of Privilege” the Notice of Inquiry stated:

The application of branch 2 has been limited on the following common law grounds as stated or upheld by the Ontario Courts:

• Waiver of privilege by the head of an institution (see Ontario (Attorney General) v. Big Canoe, 2006 14965 (ON SCDC), [2006] O.J. No. 1812 (Div. Ct.)) and

• The lack of a zone of privacy in connection with records prepared for use in or contemplation of litigation (see Ontario (Attorney General) v. Big Canoe, 2006 14965 (ON SCDC), [2006] O.J. No. 1812 (Div. Ct.)).

[40] There was nothing further in the Notice of Inquiry about waiving privilege under s. 19(b). MAG states that the above excerpt from the Notice of Inquiry demonstrates that the Commissioner raised the waiver by head issue and therefore it is not a new issue. However, MAG did not address the issue in its representations.

[41] MAG explains that it did not address the waiver by head issue in its representations, because the Notice of Inquiry did not pose any questions to the parties on this point. Further, MAG argues that in this excerpt, the Commissioner was stating a proposition about waiver under s. 19(b) that it agreed with. For this reason, MAG explains that it did not need to raise the waiver by head issue in its representations. With respect, this argument is not credible.

[42] This excerpt from the Notice of Inquiry simply refers to a case (Big Canoe 2006) purporting to limit the application of branch two. The Notice of Inquiry does not explain what the Commissioner intended to convey to the reader in this excerpt. Further, the excerpt from the Notice of Inquiry does not state that privilege can only be waived by the head of an institution. Moreover, that is not what s. 19 states. Sections 19(a) and (b) only authorize the head to refuse to disclose a record in response to a freedom of information request. There is nothing in FIPPA that specifically assigns the authority to waive privilege, for the purpose of the s. 19 exemption.

[43] Further, in this excerpt the Commissioner states that branch two has been limited by the common law. MAG on the other hand argues that common law waiver does not apply to branch two.

[44] MAG also argues that it did not address s. 19(b) in its representations because the Commissioner did not pose a question about this section. However, the Notice of Inquiry did not raise any questions dealing with the statement on severance under s. 10 and yet MAG made representations on this issue.

[45] I do not accept that MAG read this part of the Notice of Inquiry and assumed the Commissioner was of the view that privilege can only be waived by the head or that common law waiver does not apply to the statutory privilege created by s. 19 (b). Such an assumption, if held, would have been wholly unjustified.

[46] MAG’s representations do not reveal that it raised the waiver by head argument before the Commissioner. In fact, MAG stated the opposite in its representations to the Commissioner at para. 19 as follows:

Crown counsel hold a very unique and somewhat complicated position as it pertains to various sections of the Act and the application of historical concepts such as solicitor-client privilege and agency. Various orders have often identified the Attorney General as being the “client” for purposes under the Act. Complicating the matter is the fact that Crown counsel are agents of the Attorney General and that agents hold the same position as client. Crown counsel also possess a high degree of autonomy and are able to make decisions without consultation. From both a theoretical and practical perspective, an argument can be made that Crown counsel hold the dual roles of solicitor and client when consulting with various third party entities.

[Emphasis added.]

[47] The same can be said about MAG’s second argument that the common law rule of waiver does not apply to the statutory privilege created by s. 19 (b). In the representations to the Commissioner, MAG took the position that statutory privilege under s. 19(b) encompasses “the same two types of privilege as derived from the common law in Branch 1”, that the privilege under ss. 19(a) and (b) “although not necessarily identical, exist for similar reasons”, and that the scope of s. 19(b) privilege “is essentially the same.” With the exception of noting that unlike common law litigation privilege, s. 19(b) litigation privilege has no temporal limit, MAG did not distinguish between ss. 19(a) and (b) in its arguments. With respect to the issue of waiver, it addressed s. 19 as one.

[48] The representations included a section titled “Was there any loss of Privilege because of Waiver?” MAG only advanced two reasons why privilege was not waived, both based on common law exceptions to waiver. First, because the Assistant Crown attorney was seeking expert input from the Manager, and second, because they shared a common interest. MAG did not raise the waiver by head argument and did not argue that common law waiver does not apply to s. 19(b) statutory privilege.

[49] There is simply no basis for concluding that the Commissioner and the Requester understood that MAG was raising these issues before the Commissioner.

[50] The Requester filed his reply and vigorously contested MAG’s position. When MAG filed its reply submissions, it continued to deal with ss. 19 (a) and (b) as one and made no reference to issues (i) and (ii).

[51] In summary, the record confirms that MAG did not raise issues (i) and (ii) before the Commissioner. These are issues that MAG could have raised and did not.

The New Issues Cannot be Raised on Judicial Review

[52] The court has the discretion to deal with an issue that could have been raised before the administrative decision maker, but is not raised until judicial review. This is not a case where the discretion should be exercised in favour of MAG and I decline to do so.

[53] The rationale for declining to hear such an argument rests on a number of considerations: showing respect for the legislative decision to confer first line responsibility on the administrative decision maker to make such decision; obtaining the benefit, for the court on judicial review, of a decision of the specialized decision maker on the issue; avoiding any unfair prejudice to the responding party; and ensuring that there is an adequate evidentiary record to decide the question (see Alberta Teachers at paras. 22-26). All of these considerations are engaged in this case.

[54] In Alberta Teachers, the Supreme Court held that it was appropriate to deal with an issue that the adjudicator did not consider. Several factors supported this decision. The issue raised a straightforward question of law concerning the application of timelines. No evidence was required to decide the issue. Further, the court found that the “decision on the timelines issue [was] necessarily implied” based on the evidence. The Commissioner had expressed his views on the same timelines issue in prior decisions. This meant that the court had the benefit of the Commissioner’s expertise. As I will explain, the factors that supported the decision to deal with the new issue in Alberta Teachers are not present in this case.

[55] It cannot be implied from the Order that the Commissioner made a decision on issues (i) and (ii). I do not accept that the brief excerpt in the Notice of Inquiry dealing with s. 19(b) can be interpreted as raising these issues. The Order did not deal with the issues because they were not raised.

[56] At a minimum, it seems that the Commissioner flagged the possible issue of waiver by head under s. 19 (b), by referring to Big Canoe 2006 in the Notice of Inquiry. However, it was not an issue that MAG pursued.

[57] This Court does not have the benefit of the Commissioner’s expertise on the new issues by looking at prior decisions of the Commissioner. Big Canoe 2006 does not offer that expertise. In that case, this court specifically stated that the question of whether common law waiver applied to s. 19(b) privilege in the context of voluntary disclosure would have to await another day. In obiter, the court stated that “the exemption surely would have to be waived by the person having such authority: the head”.

[58] The waiver by head issue cannot be decided without evidence. On the one hand, MAG states that the Assistant Crown attorney has a “high degree of autonomy and is able to make decisions without consultation.” On the other hand, MAG argues that only the head can waive the privilege. Evidence is required to understand how these conflicting statements co-exist.

[59] If the issues had been raised before the Commissioner, MAG could have been asked for further evidence surrounding the circumstances of the disclosure to the Manager, including who approved the disclosure and whether that individual had been delegated decision making powers of the "head" under FIPPA. However, as the Commissioner stated in his reasons, “[n]o evidence was provided that the Assistant Crown Attorney was acting without the authority of the ministry when the draft was shared.”

[60] In summary, I decline to exercise the court’s discretion to allow issues (i) and (ii) to be argued. It would be prejudicial to the respondents to allow the new issues to be raised on this judicial review. The new issues are not straightforward questions of law as was the case in Alberta Teachers. The issues have not been addressed by the Commissioner in other cases. As a result, this court does not have the benefit of the Commissioner’s expertise on the issues.

Consideration of s. 19(b)

[61] There is no basis in the record for concluding that the Commissioner failed to consider s. 19(b) or conflated it with s. 19(a). As I have stated, MAG did not distinguish between ss. 19(a) and (b) and the Commissioner reasonably addressed the issues as they were presented.

[62] Further, the essence of this ground of review is MAG’s new issue that common law waiver of privilege does not apply to s. 19(b). I have declined to allow this new issue to be argued.

No Common Interest

[63] The Commissioner found that MAG failed to establish a common interest that would have allowed it to maintain privilege over the draft guideline. MAG’s grounds for review are as follows:

(i) The Commissioner’s finding that there was no “similar commonality of interests” was a conclusion with no analysis.

(ii) The Commissioner found that the proposed common interest was “too broad” when it was narrowly limited to the prosecution of HIV cases.

(iii) A common interest was found in Order PO-3167 on similar facts and the Commissioner should have followed this decision.

[64] The Commissioner’s decision on common interest was not a conclusion without analysis. It is a decision that satisfies the hallmarks of reasonableness as I will explain.

[65] In its representations, MAG described the common interest as follows:

Both the Ministry and the [Public Health Authority] represented by the Assistant Crown Attorney and the [Manager] respectively, have a common interest in the reduction of harm and the protection of society.

In this particular case, both parties worked closely together in a co-operative manner towards advancing their common interest(s). With respect to HIV infection specifically, each party had a common and vested interest in ensuring that the state of the law, the nature of the science, and the role of the public health, was properly and accurately reflected in both the justice and public health spheres.

[66] The Commissioner recognized that parties may share a common interest even if they do not have identical interests. However, the common interest proposed by MAG was rejected because it was too broad. It was not narrowly limited to the prosecution of HIV cases, as MAG now argues. The Commissioner explained his finding at para. 102:

The common interest argued by the ministry of being for the “reduction of harm and the protection of society” is too broad. If accepted by me, such a common interest would permit the ministry to disclose this record to thousands of individuals or organizations whose mandate includes the reduction of harm and protection of society, while still maintaining privilege. In my view, none of the authorities offered by the ministry support such a dramatic expansion of “common interest”.

[Emphasis added.]

[67] Describing the common interest as “too broad” was reasonable because it expanded the notion of a common interest well beyond the examples in the case law. If the Assistant Crown Attorney and the Manager had a common interest in “reduction of harm and the protection of society” then such a common interest would logically extend to doctors, nurses and police who are involved with HIV cases.

[68] The Commissioner considered the decision in Order PO-3167and found that the case at hand was not similar. This was a reasonable conclusion to draw. Order PO-3167 involved a memorandum prepared by the Assistant Deputy Attorney General, Criminal Law Division. It was described as “Interim Advice to Crowns” and marked “Privileged and Confidential”. The memorandum described the outcome of a criminal case in which provisions of the Criminal Code were found to be constitutionally invalid. The memorandum discussed the status of pending appeals arising from the decision and offered advice to Crown Attorneys, including advice they may give to the police. The memorandum also indicated that its contents may be shared with the police. The Assistant Deputy Minister shared the memorandum with the Chiefs of Police.

[69] In Order PO-3167, the Commissioner found that the Assistant Deputy Minister and the Chiefs of Police had a common interest in law enforcement and the “confidential subject matter of the memorandum.” They were also found to have had a common interest “in having a uniform understanding of the state of the law on the particular point in issue”, as well as a “uniform approach” to its administration.

[70] In contrast, the common issue that MAG presented was broad and lacked the specific focus found in Order PO-3167. The draft guideline was not marked “Privileged and Confidential” and there was no evidence that it was shared in furtherance of the common interest.

[71] The Commissioner explained that MAG and the Public Health Authority “have very different statutory and practical mandates.” The draft guideline related to the “ministry’s role in deciding how and when to prosecute individuals for breaches of the Criminal Code.” In contrast, public health authorities were found to be “broadly responsible for protecting and promoting health of a given population.”

[72] The existence of a common interest depends on the facts. In this case, the Commissioner found no “overlap in their mandates or spheres of operation, which would establish a common interest with respect to sharing of the draft guideline.” [Emphasis added.] The assessment of an alleged common interest depends on the specific context in which the draft guideline was shared. Given the lack of evidence about the sharing of the draft guideline, it was reasonable for the Commissioner to draw this conclusion.

[73] In summary, the Commissioner’s rejection of the common interest was reasonable. The result is justified, transparent and intelligible. It falls within the range of possible acceptable outcomes that are defensible on the facts and the law.

conclusion

[74] The application for judicial review is dismissed.

[75] The Requester was successful and is entitled to fair and reasonable costs. I fix his costs at $2,500 all-inclusive payable by MAG.

___________________________ C. Horkins J.

R. Gordon R.S.J.

Nordheimer J.

Released: November 15, 2016

CITATION: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2016 ONSC 6913

DIVISIONAL COURT FILE NO.: 442/15 DATE: 20161115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. GORDON R.S.J., NORDHEIMER and C. HORKINS JJ.

BETWEEN:

MINISTRY OF THE ATTORNEY GENERAL Applicant

– and –

INFORMATION AND PRIVACY COMMISSIONER AND MARCUS MCCANN Respondents

REASONS FOR JUDGMENT

C. Horkins J.

Released: November 15, 2016