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s.19 SUMMARY OF ORDERS/PRIVACY REPORTS s.12

s.12 FIPPA/s.19 FIPPA Waiver



  • the client's waiver of the privilege can be inferred from the actions of the client's solicitor. Legal advisors have the ostensible authority to bind the client to any matter which arises in or is incidental to the litigation, and that ostensible authority extends to waiver of the client's privilege... In my view, by providing the records to the Ministry, counsel, on behalf of Ontario Hydro, waived any privilege which may have attached to the records. The fact that at least one of the records was marked as being confidential does not negate this finding. (Order # PO-1846-F)
  • There was no waiver of privilege when a report had to be read by members of Council in conjunction with a report written by a solicitor. The critical fact was that the solicitor's report was sent under separate cover and was marked as confidential. (Order #M-974) Disclosure of the status of an operator's licence to a third party about the operator's certification was for a consistent purpose. However, disclosure of additional personal information eg. home address and employment history, was not for a consistent purpose and therefore not in compliance with this section. (Privacy Investigation Report #I96-113P).

General

  • Solicitor-client privilege can apply to communications between institutions where a solicitor-client relationship exists. In this case, a solicitor-client relationship existed between the OPGT (as solicitor) and MCBS (as client). (PO-1985)


  • Where the OCL represents an individual, using retained counsel, "a solicitor-client privilege exists between the [individual] as client and the OCL and its retained counsel, both as solicitors. The relationship between the OCL and its outside counsel is properly characterized as one of agent-principal, rather than solicitor-client." (Order #PO-2006)

  • Communications between institutions do not enjoy solicitor client privilege where the institutions are not closely related, particularly where they operate at arm's length from one another. In this case, Ontario Hydro was found to not be an agent of the Crown either at common law or by statute. Ontario Hydro was also found to operate at arm's length from the Government. Consequently, the IPC found: "that Ontario Hydro has not established that it or its legal advisors had a solicitor-client relationship with the Ministry such that its communications are protected under section 19 of the Act." (Order # PO-1846-F)
  • [A] record must satisfy each of the following requirements in order to meet the "dominant purpose" test: 1.The record must have been created with existing or contemplated litigation in mind. 2.The record must have been created for the dominant purpose of existing or contemplated litigation. 3.If litigation had not been commenced when the record was created, there must have been a reasonable contemplation of litigation at that time, i.e. more than a vague or general apprehension of litigation. (Order # PO-1855)
  • The adjudicator considered the apparent contradictions in previous case law regarding whether lawyers' bills or account are subject to solicitor-client privilege. Citing Stevens v. Canada (P.C.) (1998), 161 D.L.R. (4th) 85 (F.C.A.) It was determined that unless an exemption such as a waiver applies, lawyers' bills of account, in their entirety, are subject to solicitor-client privilege at common law, and the common law must determine the privilege where an access statute incorporates it in an exemption. However, this information may not be subject to privilege if it is requested from other sources, such as the institution's accounting records. "Acts of counsel or mere statements or facts" are also not protected. Although a statement of account is privileged because it is integral to the seeking, formulating, and giving of legal advice, a trust account ledger is not because it relates to "acts" done by counsel. (Order #PO-1714, MO-1408)
  • The adjudicator considered the apparent contradictions in previous case law regarding whether lawyers' bills or account are subject to solicitor-client privilege. Citing Stevens v. Canada (P.C.) (1998), 161 D.L.R. (4th) 85 (F.C.A.) It was determined that unless an exemption such as a waiver applies, lawyers' bills of account, in their entirety, are subject to solicitor-client privilege at common law, and the common law must determine the privilege where an access statute incorporates it in an exemption. However, this information may not be subject to privilege if it is requested from other sources, such as the institution's accounting records. "Acts of counsel or mere statements or facts" are also not protected. Although a statement of account is privileged because it is integral to the seeking, formulating, and giving of legal advice, a trust account ledger is not because it relates to "acts" done by counsel. (Order #PO-1714, MO-1407).
  • Section 74 of the Municipal Act, which allows any person to inspect certain records, books or documents does not create an obligation for an institution to respond to an FOI request more quickly than the 30 day maximum contained in section 19 of the Act.(Order # MO-1326)


  • A record that is prepared for Crown Counsel for use in giving legal advice is exempt under this section, if that is its dominant purpose and even if it also has another purpose. A letter from Crown Counsel requesting an accounting firm to perform an investigation of a former Treasurer's activities is a record prepared to assist in giving legal advice. The investigation report is also privileged because the dominant purpose in the preparation of the document is for use in the giving of legal advice, even though it was also prepared for operational purposes. Since the requesting letter is exempt, it is unreasonable not to also exempt the investigation report. Further consistency requires that an internal memo as to the conduct of the investigation should also be exempt. The Ontario Divisional Court found that the Inquiry Officer had interpreted branch 2 of the solicitor-client privilege exemption too narrowly in finding that records had to represent communications of a confidential nature between a client and a legal advisor which are directly related to seeking, formulating or giving legal advice. (The Attorney General of Ontario and Donald Hale, Ernst and Young and John Doe, April 11, 1995, Ontario Divisional Court, Court File No. 462/94, Justices Saunders, Rosenberg and Feldman).

 

  • The Commission had previously held as follows: branch 2 of this exemption requires that the record be prepared for use in giving legal advice or in contemplation of litigation. This is a narrower wording than if the statute used the phrase "for the purpose" of giving legal advice. Therefore, to rely on this exemption the record itself must be used in giving legal advice. Moreover, "legal advice" generally includes a legal opinion about a legal issue and a recommended course of action based on legal considerations. It does not include information given about a matter with legal implications where there is no recommended course of action based on legal considerations and where no legal opinion is expressed. (Orders #P-210, P-236, P-281, P-368, M-59, P-454, M-173, P-604, P-585, M-233, M-237, P-592, P-583, M-258, M-286, P-666 P-907) This point has been overturned by Judicial Review. The Judicial Review, The Attorney General of Ontario and Donald Hale, Ernst and Young and John Doe, April 11, 1995, Ontario Divisional Court, Court File No. 462/94, Justices Saunders, Rosenberg and Feldman is annotated above and in the Judicial Review section.


  • For section 19 to be applicable, the institution must be engaged within a solicitor-client relationship. The exemption does not apply to records that were generated either before counsel was hired or after counsel's retainer was terminated. (Order #M-485)


  • The Commission rejected an argument made by an institution that the actual content of correspondence between a solicitor and client should bear little relevance to the determination of whether the records should be disclosed because the very possibility of disclosure would constrain the quality, candour and reliability of advice provided by Counsel. In the Commissioner's view, such a broad approach to the exemption would be inconsistent with the purposes of the Act. (Order #M-520)


  • Records that are created for secondary purposes unrelated to litigation may still be exempt if the dominant purpose for their creation is litigation. As a result, the exemption did not apply to routine fire reports whose completion was mandatory for all fires, nor did it apply to witness statements taken from fire crews by the Fire Marshall's Office in order to ascertain the cause of a fire. However, the exemption did apply to specific notes that fire crews were required to prepare because the circumstances of a fire might result in civil or criminal proceedings. (Order #M-685)


  • The presence of the solicitor at a meeting does not automatically spread an "umbrella of privilege" over all of the proceedings. It is appropriate to sever documents so that the non-privileged parts may be disclosed. (Order #P-1363)


  • Branch 2 is designed to protect information prepared by or for Crown Counsel in connection with proceedings being conducted by Crown counsel on behalf of the government. (Order #P-1342)


  • Branch 2 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.(Order #P-1342)


  • In Ontario (Attorney General) v. Big Canoe, 1997 O.J. No. 4495 (Div. Ct.), the court found the common law principle of waiver applies equally to Branch 1 and Branch 2 of this provision. Consistent with this court decision, other common law principles which define the scope of solicitor-client and litigation privilege should apply equally to both branches. This preserves for government institutions the full privilege extended to private litigants. (Order #P-1551) 


  • The adjudicator considered the apparent contradictions in previous case law regarding whether lawyers' bills or account are subject to solicitor-client privilege. Citing Stevens v. Canada (P.C.) (1998), 161 D.L.R. (4th) 85 (F.C.A.) It was determined that unless an exemption such as a waiver applies, lawyers' bills of account, in their entirety, are subject to solicitor-client privilege at common law, and the common law must determine the privilege where an access statute incorporates it in an exemption. However, this information may not be subject to privilege if it is requested from other sources, such as the institution's accounting records. "Acts of counsel or mere statements or facts" are also not protected. Although a statement of account is privileged because it is integral to the seeking, formulating, and giving of legal advice, a trust account ledger is not because it relates to "acts" done by counsel. (Order #  PO-1714, MO-1408, PO-1952)

Privilege Applies



  • A briefing note that summarizes the substance of an opinion given by an institution's legal counsel to an institution employee is privileged. (Order #P-135)


  • A Crown counsel's memorandum is prepared for use in giving legal advice where it provides an interpretation of an agreement and legal options to consider in attempting to resolve a matter under dispute. (Order #P-281)


  • Letters from the prosecuting Crown attorney to the investigating officer or to the Sheriff's officer regarding a particular prosecution are exempt under this provision. (Order #P-381)

 

  • It is possible for letters or communications passing between opposing counsel to obtain the status of a privileged communication if they are made "without prejudice" and in pursuance of settlement. (Order #P-49) See contra below.


  • The privilege did not apply to "Minutes of Settlement" entered into between a Board and its former employee. The Commission found that at the time the settlement was negotiated the Board could not have expected that litigation would occur regarding the terms of the agreement. It was noted that given that the agreement was endorsed by all the parties litigation would be most unlikely. (Order #M-441). See contra above


  • Where a non-lawyer employee of an institution creates a record that quotes from a legal opinion provided by a lawyer to the institution, the quotes are exempt under this section. (Order #P-417)


  • A "request for legal opinion" together with the resultant legal memorandum was held to be exempt under this provision. (Order P-823)


  • Invoices from a forensic accounting firm which details the activities of the investigatory team were exempt. (Order #M-521)


  • Correspondence between a municipality and its solicitor which included draft documents prepared by a solicitor for review by the client and which included legal advice from a solicitor to a municipality regarding the development plans for a property fell under Branch 1 of the exemption. Equally, facsimile transmissions from a municipality to its counsel asking for legal advice are privileged. (Order #M-520)


  • Records prepared by a manager in an institution relating to a complaint made by the requester to the Ont. Human Rights Commission for use by the institution's counsel to assist in the preparation of a defence to the complaint are exempt under Branch 1 of the privilege. (Order #M-523)


  • The common law privilege applied in documents which were correspondence between a ministry solicitor and a senior crown counsel at the Ministry of the Attorney General concerning legal issues. These records contained instructions provided by the ministry solicitor to counsel with respect to the preparation of a legal opinion, information related to the creation of an opinion, the opinion itself and the clarification of the opinion. (Order #P-979)


  • When a Native land claim is filed, it is directed to the Negotiations Support Branch of the Ontario Native Affairs Secretariat for historical research. Once this research is completed, the research report and the claim are forwarded to the Legal Services Branch for a legal opinion. The report is the primary source of the legal opinion. Ontario's position on the land claim is then developed on the basis of historical data and the legal opinion. The research report and the status report are prepared for Crown counsel for use in giving legal advice. A status report is also prepared by Crown counsel for use in giving legal advice on the same land claim. The Commission is satisfied that legal advice regarding land claims must necessarily have a basis in historical research and evidence. Therefore, the requirements for exemption under Branch 2 have been met and section 19 applies. (Order #P-949)


  • A memorandum from legal counsel to the program area about the relevant issues surrounding the out of country health care costs and a transmittal letter from legal counsel for the Attorney General to legal counsel for the Ministry which accompanied a briefing note on changes to regulations for the Ontario Health Insurance Act were both privileged.(Order #P-1038)


  • Disclosure of settlement negotiations to a party adverse in interest does not constitute a waiver of privilege. (Orders # M-477, M-712)


  • Communications between a ministry counsel and staff regarding legal advice relating to the drafting of a regulation are privileged under Branch 1 of the common-law solicitor-client privilege and therefore are exempt. However, correspondence which refers to the draft regulations is not exempt under this provision. (Order #P-1205)


  • Correspondence which refers to records outlining negotiation positions of both parties regarding severance agreements is not communication between a solicitor and client. (Order #M-758)


  • A memorandum from the regional counsel of the Family Support Plan (FSP) of the Ministry of the Attorney General to FSP enforcement staff regarding the garnishment of the requester's wages was held not to be privileged under either branch of this provision. The Commission found that the memorandum did not contain legal advice; rather, it contained a chronological description of the relevant facts together with a request that the enforcement staff take certain actions. (Order #P-792). This was reconsidered as a result of two Judicial Review decisions and the original decision was reversed. In the order a memorandum from the regional counsel of the Family Support Plan (FSP) of the Ministry of the Attorney General to FSP enforcement staff suggesting that they take certain actions regarding the garnishment of the requester's wages was "prepared for use" in giving legal advice. Although the memorandum did not contain legal advice per se, the Commission found that the information gained by the enforcement staff when taking these actions would be used in giving legal advice and was therefore privileged under branch 2 of this provision. (Order #P-1229)


  • In this case, records were prepared by Crown counsel who possessed unique legal expertise. He then provided this advice to other Crown counsel and staff who were representing various other ministries. The Commission ruled that although the advice was, in some instances, communicated on a somewhat larger scale than is the norm, such communication did not negate the claim of solicitor client privilege. (Order # P-1458)


  • The minimal reference to a legal opinion in letters responding to public queries, where the opinion was otherwise kept confidential and where litigation triggering consideration of fairness was not a factor, was not an implied waiver of privilege. (Order #P-1599)

A. Legal Accounts

  • A legal account from a lawyer to his or her client reflects a confidential communication related to legal advice and is therefore exempt under branch 1 of the common-law solicitor-client privilege. The account reflects communications of a confidential nature directly related to the seeking, formulating or giving of legal advice between a client and its legal advisor. The Commission, in coming to this decision, considered the case of The Mutual Life Assurance Company of Canada v. The Deputy General of Canada [1984] C.T.C. P-155, Supreme Court of Ontario (Toronto Motions Court). (Order #P-126 and see contra below, Order #M-213)

 

  • The adjudicator considered the apparent contradictions in previous case law regarding whether lawyers' bills or accounts are subject to solicitor-client privilege. Citing Stevens v. Canada (P.C.) (1998), 161 D.L.R. (4th) 85 (F.C.A.), it was determined that unless an exemption such as a waiver applies, lawyers' bills of account, in their entirety, are subject to solicitor-client privilege at common law, and the common law must determine the privilege where an access statute incorporates it in an exemption. However, this information may not be subject to privilege if it is requested from other sources, such as the institution's accounting records. "Acts of counsel or mere statements or facts" are also not protected. Although a statement of account is privileged because it is integral to the seeking, formulating, and giving of legal advice, a trust account ledger is not because it relates to "acts" done by counsel. (Orders #PO-1714, MO-1339)
  • Those portions of the legal account that describes the matters attended to or services rendered would reveal the subject matter on which legal advice was sought or given. The Commission found that this information on a legal account was exempt as being confidential communication between the client and the legal advisor regarding legal advice.(Order #M-560, P-1115)


Not Privileged



  • The Court found that the Board could not rely on the privilege to support its refusal to identify which records were held at its law firm. By its course of conduct, the Board did not consistently demonstrate that it was concerned about disclosing the location of legal documents. The Board's attempt to use the privilege at a late stage in the process, given its conduct, was viewed as trivializing the genuinely important doctrine of solicitor/client privilege. (Re: Toronto Board of Education and David Burk, Mumtaz Jiwan and Shibley Righton, March 6, 1996, Ontario Divisional Court, Court File No. 213/95, Justices Steele, Feldman and MacPherson)


A. Legal Accounts

  • Invoices and accounts from a lawyer to his or her client are not automatically covered by the common-law solicitor-client privilege. The institution must determine whether the contents of the legal account relate in a tangible and direct way to the seeking, formulating or provision of legal advice. The Commission ruled that, in this case, the legal account which set out in summary fashion the steps that the law firm took to complete its work assignment, did not contain legal advice and did not reveal any such advice indirectly. The account did not reveal the subjects which the law firm was asked to investigate, the strategy used to address these issues or the result of the advice. The Commission noted that the intent of the legislation would be ill-served by allowing this exemption to be used to shield a non-substantive record of this nature from public scrutiny, particularly in times when public bodies have to ensure that tax dollars are spent wisely. (Orders #M-213, M-258, P-624, M-274, P-667, (see contra above, Order #P-126, M-540, M-560, P-921, M-637))


  • Although a legal account arises out of a solicitor-client relationship, this record category differs qualitatively from legal opinions or other communications which purport to provide legal advice from a lawyer to his or her client. The Commission referred to Re Ontario Securities Commission and Greymac Credit Corp.; Re Ontario Securities Commission and Prousky (1983), 41 O.R. (2d) 328 at 337 (Ont. Div. Ct.) where Southey J. stated that legal accounts are evidence of transactions and not subject to the privilege where the advice and communications are severed from them. The Commission noted that the purpose of the Act was to provide a right of access in accordance with the principle that the exemptions are to be narrowly interpreted. As a result, the test was held to apply to legal accounts which would reveal the subjects for which legal advice was sought, the strategy used to address the issues raised, the particulars of any legal advice provided or the outcome of these investigation. This allows for legal accounts to be severed or information relating in a direct a tangible way to the seeking, formulating or provision of legal advice. In this case, legal accounts that disclosed a tally of the hours spent and disbursements made by the law firms as well as brief narratives of the steps taken to complete the assignments were disclosed. (Orders #P-624, M-274, M-637)


  • Two disbursements listed in the legal account and a portion of a narrative description of services provided by a law firm was held to reveal the strategy used to address the issues raised by the lawsuit and the results obtained and therefore were covered by the privilege. In addition, severances were made of privileged information that disclosed the type of legal advice sought and the legal advice provided. (Orders #M-637)


  • Invoices obtained by forensic experts, who were not solicitors, were not privileged since the privilege does not extend to correspondence which shows only the existence of a solicitor- client relationship. The invoices described in a general way, the steps undertaken by the affected party to conduct its investigation and did not relate to the seeking, formulating or giving of legal advice. (Order #M-258)


  • A letter from legal counsel to a forensic accounting firm which conveyed procedural instructions in connection with its retainer fee did not reveal the nature of the work to be done. (Order #M-521)


  • The adjudicator considered the apparent contradictions in previous case law regarding whether lawyers' bills or account are subject to solicitor-client privilege. Citing Stevens v. Canada (P.C.) (1998), 161 D.L.R. (4th) 85 (F.C.A.) It was determined that unless an exemption such as a waiver applies, lawyers' bills of account, in their entirety, are subject to solicitor-client privilege at common law, and the common law must determine the privilege where an access statute incorporates it in an exemption. However, this information may not be subject to privilege if it is requested from other sources, such as the institution's accounting records. "Acts of counsel or mere statements or facts" are also not protected. Although a statement of account is privileged because it is integral to the seeking, formulating, and giving of legal advice, a trust account ledger is not because it relates to "acts" done by counsel. (Order #PO-1714)

B. Other



  • This exemption does not apply where there is insufficient evidence to establish that the contents of the records were actually communicated by a member of the staff of an institution to the institution's solicitor or that they were confidential. There was also no evidence that the records were created especially for the lawyer's brief where the Town's Director of Planning took notes during an Ontario Municipal Board hearing for possible review with the lawyer at a later date. Minutes of a meeting between the lawyer, director and others to discuss the hearing were also not exempt. (Order #M-83)


  • The retirement agreement between an institution and a former employee was not exempt under this provision. Contracts are not "communications." In addition, the institution's lawyer is not the lawyer for the former employee, and the contract cannot be said to be directly related to seeking, formulating or giving legal advice for existing or contemplated litigation. Even though a wrongful dismissal suit was a possibility, the dominant purpose of the preparation of the agreement was not litigation. The agreement is also not prepared by counsel for the purpose of giving legal advice. (Order #M-173)

 

  • Ontario Securities Commission documents consisting of lists of questions to be posed to individuals during an enforcement investigation, a memo updating action to be taken in future, a "to do" list or chronology made by senior enforcement counsel, and background notes setting out facts as understood from interviews with individuals and from reviews of documents do not come within the exemption. The Commission noted that there was no evidence that the records were created for use by anyone other than the author or that the records were used for ongoing or anticipated litigation. As well, the records did not contain legal advice. (Order #P-583)

 

  • An affected third party could not claim common-law solicitor-client privilege to prevent the disclosure of commercial information supplied to the institution by the third party. The exemption belonged to the head of the institution and, in this case, the head did not claim the exemption. (Order #P-584)


  • Records that seek or provide information on a privacy compliance review conducted by the Office of the Information and Privacy Commissioner\Ontario but which do not recommend a course of action based on legal considerations and in which no legal opinion is expressed are not exempt. (Order #P-586)


  • In these instances, the Commission ruled that the exemption did not apply to a record that stated that a response from the legal department was required and to a record that noted the status of a matter involving the City and the appellant. The Commission stated that none of this information was directly related to seeking, formulating or giving legal advice for the purpose of this exemption. (Order #M-237)


  • Views of a City solicitor contained in a letter sent to a mayor regarding the job performance of an individual who had made allegations of wrongdoing were not governed by the privilege in this case. While the City argued that the letter was inherently advisory, the Commissioner found that the comments were more administrative than legal in nature. (Order #M-233)


  • A letter written by a solicitor employed by an institution was not exempt where the letter recommends a policy which may be put in place to deal with ministry staff responses to a corporation's proposal. The solicitor had conducted an inquiry on behalf of the ministry's Director of Human Resources. The Commission noted that the letter makes no reference to legal issues and presented no review of the present state of the law. The letter outlined the chronology of events, set out factual findings and presented a proposal. The Commission characterized the letter as an internal investigation report and not a legal opinion. (Order #P-604)


  • In this case, the Commission found that correspondence from the accounting firm to the Board's Director of Legal Services related to the conduct of the forensic audit investigation and was not prepared either for use in giving legal advice or in contemplation of or for use in litigation. All reports for information, reports and accounts from the accounting firm were forwarded to the legal branch. (Order #P-710)


  • A memorandum prepared by Crown counsel for a minister's signature was held not to be exempt under this provision. The memorandum contained the wording of a proposed regulation which was enclosed for the signature of the minister. The Commission held that the memorandum did not contain legal advice. (Order #P-803)


  • A letter written by a Crown Attorney to the Police Complaints Commissioner was not exempt, even though it contained legal advice from another crown, because the Crown Attorney sending the letter was not in a solicitor-client relationship with the Complaints Commissioner. The response from the Complaints Commissioner to the Crown Attorney was not exempt because the response related to the Crown Attorney's attempts to assist a victim of a crime who was not the Crown Attorney's client. Crown Brief Will Say statements are exempt except for the appellant's own statement. (Order #P-842)


  • Notes prepared by a Director of Education and a Superintendent following a meeting which may have formed the basis for seeking legal advice were not exempt under either Branch when they were not prepared specifically for counsel. (Order #M-466)


  • A congratulatory note to the solicitor on the outcome of a case is not directly relating to seeking, formulating or giving legal advice and does not qualify for exemption. (Order #P-921)


  • An issue sheet prepared on revisions to Out of Country Health Services payments and a chart entitled Out of Country Payment Policies Provincial Survey were not exempt under this provision. These records had been attached to a clearly exempt memorandum from legal counsel and it was argued that in attaching these records and proposing revisions for them, legal counsel effectively re-created these records as part of a single record giving legal advice. The Commission determined that these records were prepared to provide background information and counsel's suggested revisions could not alone transform them into a piece of legal advice. (Order #P-1038)


  • The mere presence of a solicitor at a meeting which discussed administrative issues in the implementation of arrangements to assist survivors from the Grandview Training School does not imply that the meeting relates to the soliciting, giving or receiving of legal advice required by subsection (1)(d). Similarly, records revealing comments made by a ministry lawyer about a budgetary matter that did not pertain to legal advice or strategy were not exempt. (Order #P-1052)


In Contemplation of Litigation

General



  • When applying the "dominant purpose" test it is important to note that "dominant purpose" can exist in either the mind of the author or the person ordering the document's production, and that it does not have to be both. (PO-1832)
  • Records prepared in contemplation of litigation must meet a two-fold test: 1. the dominant purpose that the record is produced is for litigation, and 2. there must have been a reasonable prospect of litigation at the time of preparation. (Orders #P-136, P-137, P-236, M-516, P-1352)


  • Papers and materials created or obtained especially for the lawyer's brief for litigation, whether existing or contemplated, are privileged. The dominant purpose for the preparation of the document must be the contemplation of litigation and the potential for litigation must be more than a mere possibility. The privilege also includes material of a non-communicative nature such as notes made in preparation for the litigation to assist the lawyer. (Orders #P-49, P-52, P-56, P-68, P-123, M-2, M-19, M-86, M-120, M-121, P-585, M-257, M-280, M-281, P-667, P-677, P-710, M-441, M-859)


  • The dominant purpose for the preparation of the document must be in contemplation of litigation; and there must be a reasonable prospect of such litigation at the time of the preparation of the record--litigation must be more than just a vague or theoretical possibility. The solicitor swore, in an affidavit, that the dominant purpose for the preparation of the records was contemplation of probable litigation. The fact that the records were prepared prior to the commencement of the litigation, or that the litigation for which they were prepared did not materialize or has since been discontinued, does not mean that the privilege does not apply. (Orders #M-86, M-173, M-441, P-1196)


  • The fact that litigation has been discontinued since the records were prepared is not determinative of the issue of whether the records qualify for exemption under this provision. Branch 2 of the privilege, which deals with records prepared by Crown counsel, may apply even where the common-law privilege would not apply. (Orders #P-538, P-624, M-281, P-667)

Absurd Result

  • In ordering the release of certain records contained in a lawyer's brief the Commission found that the absurd result principal applied because the records had either originated from or had been sent to the appellant. However, the severance of counsel's notations on the records was upheld because the notations formed part of counsel's working papers. (Order M-1531)

Privilege Applies



  • A criminal prosecution file consisting of legal research, correspondence to and from Crown counsel relating to the prosecution, lists of witnesses that may be called and letters regarding matters to be done in preparation for the trial are exempt under branch 2 of the exemption. Each of these records was prepared by or for Crown counsel in contemplation of litigation. (Orders #P-368, P-467 and see below under "Solicitor-Client Relationship," Order #M-52, P-613, P-988)


  • Private investigators' reports, intended for use in litigation, are exempt under branch 2 of the common-law solicitor-client privilege. The invoices from, and payments to, the private investigators are closely related to their reports and as such are also exempt under this exemption. (Order #P-126)


  • Legal advice from the Director of the Crown Law Office, Criminal, to Crown attorneys regarding legal issues arising from the prosecution of drinking and driving offences is exempt under this provision. The memorandum provides an interpretation and analysis of various cases and offers suggestions on how to address them in the context of litigation. As a result, the Commission ruled that the record was prepared for use in litigation. (Order #P-546)


  • The privilege applies to papers and materials created or obtained, especially for the lawyers brief for litigation whether existing or contemplated. The adjusters reports in this case were created as a result of the claims filed with the institution. (Order #M-285, M-502)


  • Records copied for the lawyer's brief for litigation are privileged as long as there was an intention to keep them confidential. In this instance, the common-law privilege remains until the litigation is completed. (Order #P-667)


  • The is no distinction between matters in dispute before a court or a tribunal. Re-employment hearings considered by an administrative tribunal of the Workers' Compensation Board are properly classified as litigation matters. Therefore, counsel's advice to the board is privileged. (Orders P-660, M-86, M-162, M-315, P-701)


  • The litigation privilege continued to apply to records when the access request was made at the time records were sent to the solicitor, and at the date of the request, litigation in the form of a complaint to the Ontario Human Rights Commission was underway. (Order #M-523)


  • Letters sent or received by counsel for the municipality, as well as photographs of the requester's property, both of which were to be used as evidence in the course of prosecuting a By-law infraction, were found to qualify for this exemption. (Order #M-560)


  • Draft pleadings prepared by counsel for use in an action undertaken by a municipality were prepared for use in litigation. (Order #M-560)


  • The contents of a Crown Brief kept by the Attorney General Crown Counsel regarding a prosecution is exempt under this provision. (Order #P-988)


  • Ministry of Labour's "Prosecution Policy" is privileged. It was prepared by Crown Counsel for use in giving legal advice. Inquiry officer was wrong in not considering this, only considering whether document contained a legal opinion. Order was set aside. (Re Ministry of Labour v. Donald Hale and John Doe, February 22, 1995, Ontario Divisional Court, Court File No. 692/94)


Privilege Does Not Apply



  • Where Crown counsel's letter states that the litigation is without merit and that the institution will not be involved, the record is not prepared in contemplation of litigation and this exemption does not apply. (Order #P-236)

 

  • A handwritten complaint and investigator's notes compiled during an investigation by the Ontario Human Rights Commission are used primarily for determining whether a public inquiry is warranted and not for a lawyer's use in contemplation of litigation. The privilege does not apply. (Order #P-403)


  • A police officer's notes that were compiled in the course of an investigation into allegations that the requester was wrongfully convicted of murder are not exempt under this section. The notes were not compiled for use in existing or contemplated litigation. (Order #P-428)

 

  • In this case, an institution retained a researcher to provide advice regarding aboriginal land claims. The dominant purpose of the preparation of the records was for the researcher to comment on work undertaken by another researcher in the land claims field and to indicate further areas for study. The fact that the material provided by the researcher may have subsequently been used in helping to structure legal advice or in litigation does not alter the fact that the records were not prepared for such purposes originally. As a result, the records are not exempt under this section. (Orders #P-454, P-463)


  • Information related to the handling of a criminal prosecution gathered and transmitted in the form of a letter from the Ontario Provincial Police (OPP) to a Regional Director of Crown Attorneys for the purpose of drafting a response to a letter of complaint addressed to the Attorney General, was not exempt. The information did not constitute a legal opinion, nor did it provide legal advice on a recommended course of action having legal implications. Similarly, the letter prepared after completion of the trial was not prepared in contemplation of litigation. The dominant purpose of the letter from the OPP was to provide information for the drafting of a response by the Attorney General--not litigation. (Order #P-585)


  • A letter from a City solicitor to another solicitor regarding negotiations in respect of the City's eventual purchase of a property was not subject to the litigation privilege. The Commission noted that the record was not obtained or created especially for the lawyer's brief for litigation, existing or contemplated, nor was there any evidence as to what the litigation was. (Order #M-237)


  • In this case, the Commission ruled that the litigation privilege did not apply. The records concerned an internal workplace matter in which the records were created, according to the Commission, to provide documentary support for contemplated disciplinary action against the requester, rather than in contemplation of litigation. (Orders #M-257, M-296)


  • Policies and procedures on prosecutions under the Occupational Health and Safety Act were held not to be privileged. The Commission found that while the record was prepared by Crown counsel, it did not satisfy the second part of the test in that it did not contain a legal opinion. The Commission held that it dealt with policies and administrative procedures, was not based on legal considerations and did not provide a legal opinion based on the state of the law. (Order #P-776)


  • Records at issue concerned written communications between the Town's legal advisor and the mortgagee of the property and/or its agent who were not in a solicitor-client relationship. In this case, while it appears that litigation was contemplated at the time the letters were written, the Commission determined that records were not created or obtained especially for the lawyer's brief. As well, where communications relate to the resolution of litigation, the privilege does not apply. (Order #M-516)


  • An investigation report prepared by the internal affairs branch of a police services board was primarily created to document the investigation findings and not for litigation. (Order #P-1278)


  • No privilege was attached to records documenting evidence actually given at trial (even in the absence of the jury). At common law, notes of statements made during a proceeding in the presence of the parties is not confidential. (Order #P-1551)


  • At common law, communications between opposing parties, even in contemplation of litigation, are not privileged unless made with a view to settlement. In this case, privilege did not apply because the records were served on the affected person who at the time was a party adverse to the Crown in criminal proceedings. (Order #P-1551)


  • Communications containing information relating primarily to the status of a claim involving the institution are not privileged. The contents of the communications were informational only and had not been prepared for counsel's brief for existing or contemplated litigation, nor were they prepared in contemplation of, or for use in, litigation. (Order #P-1600)


  • Correspondence from sources outside the solicitor-client relationship are not privileged even though they relate to issues raised by legal counsel or have been generated as a result of advice from legal counsel.(Order #P-1602)


  • The intake form completed by a parent for the Office of the Public Guardian and Trustee, filed with the Office of the Children's Lawyer is not privileged. The primary purpose of the form is to determine the type of support that is required and best suited to the child's interests. (Order #P-1617)

 

Dominant Purpose Test



  • In the recent "General Accident Decision" the majority of the Court of Appeal questioned the "zone of privacy" approach and adopted a test that requires the "dominant purpose" of the creation of a record must have reasonably contemplated litigation in order for it to qualify for litigation privilege. The Commission has adopted the following test to determine whether records meet the "dominant purpose" test and are therefore subject to litigation privilege:

    1. The record must have been created with existing or contemplated litigation in mind.

    2. The record must have been created for the dominant purpose of existing or contemplated litigation.

    3. If litigation had not been commenced when the record was created, there must have been a reasonable contemplation of litigation at that time i.e. more than a vauge or general apprehension of litigation. A record must satisfy each requirement to meet the "Dominant Purpose" test." (Order # MO-1337-I)
  • "Factors that need to be considered in deciding whether the "Dominant Purpose" test has been met are ; an assessment of the ongoing legal proceedings and their subject matter; the date they could have reasonably have been in contemplation, and to examine in detail, the relationship between these two factors." (Order # MO-1337-I)
  • "Records concerning the sale and disposal of combustible materials owned by a company, which were part of the City's legal brief, were found not to have been created for the dominant purpose of litigation, but rather for the dominant purpose of the sale and disposal of the materials. Therefore, part two of the test was not met. Other records created by the City and Fire Department after legal action had commenced, which relate to the sale and disposal of combustible materials in relation to one of the plaintiffs, were found to have been created with litigation in mind and therefore the test was met.(Order # MO-1337-I)
  • "The "dominant purpose" test does not preclude the possible application of litigation privilege to records that were not created for the purpose of litigation but have become part of a lawyer's brief. The law as it stood prior to General Accident as set out in Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd., supra, still applies: ...the result in any such case depends on the manner in which the copy or extract is made or obtained. If it involves a selective copying or results from research or the exercise of skill and knowledge on the part of the solicitor, then I consider privilege should apply. The Commission found that the types of records which may qualify for litigation under this test are those that are publically available (such a newspaper clippings and case reports), and others which were not created with the litigation in mind. On the other hand, records that were created with real or reasonably contemplated litigation in mind cannot qualify for litigation under the Nickmar test and should be tested under "dominant purpose". (MO-1337-I)
  • Where there is no evidence that Legal Counsel played a role in selectively copying records or exercised skill and knowledge in determining which should be part of the brief, the test from Nickmar is not met and any records not privileged under the "dominant purpose" test which are part of the brief do not qualify for privilege.(Order # MO-1337-I)


  • The Commission determined that a directive which outlined the steps that counsel for the Ontario Children's Lawyer should take when interviewing children was not exempt under this section because the record was not produced with any particular litigation in mind. (PO-1937)
Loss of the Privilege when Litigation Ends

  • At common law, the solicitor-client privilege may be lost once litigation is terminated. While direct communications between solicitor and client continue to be privileged, derivative communications made in contemplation of litigation cease to be privileged when the litigation is completed. This would include reports collected for the litigation and records copied for inclusion in the lawyer's brief for litigation. (Order #P-667)


  • While in some cases the privilege is lost on the termination of litigation, this is not the case regarding records exempt under branch 2 of the exemption. (Order #M-518)


  • Litigation privilege ends with termination of the litigation for which the documents were prepared or obtained. The exception to this rule is where policy reasons underlying the privilege remain, despite the end of the litigation. For example, privilege may be sustained in related litigation involving the same subject matter in which the party asserting the privilege has an interest. The law is only intended to give effect to the privilege while the purpose for its recognition continues to be served. Its purpose is to protect against disclosures which could effect the lawyer's preparation for the particular litigation, or any related litigation arising out of the same subject matter. In this case, all litigation involving the Crown had ended. The policy reasons underlying litigation privilege were no longer present and disclosing the records would not harm the process by hindering the investigation and preparation of future cases of this nature. The records did not fall under Branch 1 of this provision. (Order #P-1551)


  • Under the litigation privilege or work product rule, a distinction has been drawn between ordinary work product (documents gathered from third parties, the document itself or factual information) and opinion work product (counsel's mental impressions, conclusions, opinions or legal theories), with the latter enjoying a heightened protection. (Order #P-1551)


  • Memoranda and correspondence between Crown counsel are no longer exempt under branch 2 once the litigation no longer exists. (Order #P-1582)


Crown Counsel



  • "[T]he Crown has the right to claim the equivalent protection of solicitor-client privilege available at common law, but the additional words added to the end of section 19 during legislative debate do not add to this right. In other words, if records in the custody or control of an institution which would have been protected by solicitor-client privilege at common law lose this protection through waiver or termination of litigation, then the fact that these records were prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation has no bearing on the application of the doctrine of solicitor-client privilege. If privilege is lost or terminates at common law, then it is also lost or terminates in the context of a solicitor-client relationship involving Crown counsel." (Order #PO-1879)
  • Crown counsel includes any person acting in the capacity of legal advisor to an institution covered by the Act. This includes outside counsel retained by the Crown. (Orders #P-52, P-123, P-170, P-218, P-538, P-660)


Waiver (See also, cases below under "Solicitor-Client Relationship.")



  • Despite the fact that persons other than the solicitor and the client have access to the record, the privilege is not waived unless there is evidence to indicate that the client has waived the privilege available at common-law. In this case, the record was written to and for persons outside the institution, and was given to an institution official by someone other than the addressee. Only the client can waive solicitor-client privilege and although it is clear that persons other than the solicitor and the client had access to the letter, the Commission ruled that the privilege had not been waived. (Order #P-136)


  • While only the client may waive the privilege, all the circumstances regarding the disclosure of a legal opinion must be considered to determine whether there has been a waiver. Where the legal opinion was provided by the Reeve of the Township to the affected party intentionally and without any restrictions on its use, the disclosure constituted a waiver of the solicitor-client privilege. (Order #M-19)


  • In this case, the Commission ruled that fairness did not require the disclosure of a legal opinion when an institution had disclosed a summary of a legal opinion and not the opinion itself. The Commission stated that the purpose of requiring disclosure of the entire opinion on the basis of implied waiver, would be to prevent any unfairness to the requester, so that the requester would not be mislead as to the institution's position or so that the institution could effectively rely on only those elements of the opinion which are advantageous to its position. In a postscript, the Commission noted that the disclosure by the institution of a statement of its legal position represented a useful way of providing some information to the public in circumstances in which it was not required to do so. (Order #P-579)


  • In this case, the Commission found that an implicit waiver of the privilege had occurred in respect of a letter from a lawyer which was kept in the requester's personnel file. The requester was authorized to view the record at any time when she was acting as the executive secretary to the institution. The institution indicated that it was reviewing its practices with a view towards creating a separate filing system for solicitor's letters and removing them from employees' personnel files. (Order #M-260)


  • The institution waived solicitor-client privilege when it permitted a member of the public to examine the requested record placed in a public file. This record contained solicitor-client communication.(Order M-923).


  • Where a solicitor for an institution sent a summary of an opinion to another private-sector solicitor, he or she waived the privilege. The institution, a Town, had passed a by-law which endorsed all actions taken by the solicitor in the proceedings in question. As a result, the Commission found that the solicitor had acted on behalf of the Town when the summary of the opinion was disclosed and the privilege waived. (Order #M-291)


  • When Crown counsel sends letters to the appellant's solicitor, who was a third party with an adverse interest in litigation, the privilege is waived. (Order #P-780)


  • In this case, a number of documents were prepared by the City's solicitor. Those records "copied" to specific city staff did not constitute a waiver of privilege. However, the fact that some records were "copied" to a police officer is evidence that the record is not to be treated confidentially or that privilege has been waived unless it can be established that there is a "joint interest" between the City and the police i.e., proof that the interests of the City and the police were sufficiently connected to be accurately characterized as a joint interest.(Order #M-739)


  • Waiver of privilege is established when the possessor of the privilege, the client (1) knows of its existence, and (2) voluntarily intends to waive it. Disclosure to outsiders of privileged information constitutes waiver of privilege. Since the client is the "holder" of privilege, only the client can waive it. The client's waiver of privilege can be implied from the actions of the client's solicitor. Legal advisors have the authority to bind the client to any matter which arises in or is incidental to the litigation, and that authority extends to waiver of the client's privilege. (Order #P-1342)


  • In this case, the Crown Prosecutor had been retained by the Attorney General not the Law Society. The Crown Prosecutor and Attorney General knew of the existence of privilege and waived it by providing privileged information to the Law Society without having the public duty to do so. The interests of the Ministry and Law Society about the conduct of lawyers in Ontario were not sufficiently connected to be accurately charactered as a "joint interest". (Order #P-1342)


  • Disclosure of the nature of the advice one intends to seek does not waive solicitor client privilege for the advice given. (Order #M-974)

 

  • There was no waiver of privilege when a report had to be read by members of Council in conjunction with a report written by a solicitor. The critical fact was that the solicitor's report was sent under separate cover and was marked as confidential. (Order #M-974) Disclosure of the status of an operator's licence to a third party about the operator's certification was for a consistent purpose. However, disclosure of additional personal information eg. home address and employment history, was not for a consistent purpose and therefore not in compliance with this section. (Privacy Investigation Report #I96-113P).


  • Solicitor client privilege had not been waived as a result of the contents of a legal opinion being shared among ministry employees. (Order #P-1511)


  • The Solicitor-Client privilege of an institution is not considered waived when its clear intention is merely to provide a minimal degree of information disclosure at a public meeting in order to meet its obligations as a public body.(Order #MO-1172)


  • A communication between opposing parties may not qualify for exemption under this provision. (Order #MO-1180)


  • The application of privilege may apply when the law firm has not been formally retained or where there was no formal retainer agreement, including communications related to retaining a solicitor. (Order #MO-1180)


  • When a Township disclosed its solicitor's legal opinion to MMAH for the purpose of obtaining approval for a Township by-law, it waived solicitor-client privilege. The Commission found that, although the Township had an obligation to provide relevant material to MMAH, this would not necessarily include the actual legal opinion provided by the solicitor. (Order #MO-1223)

 

Confidentiality



  • Where the information sought can be obtained from publicly available court records, it is not reflective of a confidential communication between a client and a solicitor. (Order #P-141)


  • Where the institution had sent the appellant the records to which this exemption is claimed, the exemption does not apply and the records cannot be considered confidential. (Order #P-163)


  • The privilege did not apply to an invoice submitted to the institution's solicitor who, in turn, forwarded it to the institution for approval and payment. The Commission ruled that the institution's solicitor was merely a conduit for the passing of the documents to the client. The communication originated with the third party and not a legal advisor of the institution. (Order #M-258)


  • Notes prepared by City staff of meetings attended by certain members of City staff, their counsel, staff of a local hospital and their counsel and consultants were not confidential communications between a solicitor and his or her client. (Order #M-394)


Solicitor-Client Relationship



  • The solicitor-client privilege exemption is designed to protect the interests of a government institution in obtaining legal advice and having legal representation in the context of litigation, not the interests of other parties outside government... It is important that the government, which is spending taxpayers' money, should be able to be certain that public servants tell our lawyers the truth. We do not want to discourage public servants from telling our lawyers the truth by saying to them, "Everything you say is going to be open in a couple of days in the newspapers." ...Thus, where the client in respect of a particular communication relating to legal advice is not an institution under the Act, the exemption cannot apply. The only exception to this rule would be where a non-institution client and an institution have a "joint interest" in the particular matter. Where the World Wildlife Fund (the WWF) was seeking to ensure that a city adopt a by-law which was sensitive to conservation and environmental issues, the WWF was acting as an arm's-length public interest group and the interests of the WWF and the City in regard to the adoption of an environmentally sound by-law were not sufficiently connected to be accurately characterized as a "joint interest".(Order # MO-1338)
  • The Crown brief that is provided to the Crown prosecutor from a local police force is not subject to the solicitor-client privilege at common-law where the request for the records is made to a local police force. The police are not the clients of the Crown attorney so that the common-law privilege cannot apply. However, Crown briefs are exempt under this section in respect of the provincial Freedom of Information and Protection of Privacy Act because the exemption applies to records prepared by or for Crown counsel (see Orders #P-467, P-368, P-613). In Order P-613, the Commission ruled that the Crown Law Office Criminal, of the Ministry of the Attorney General, was not in a solicitor-client relationship with the Ontario Provincial Police when it sought advice regarding a potential criminal charge being laid. The records were, however, exempt under branch 2 of the solicitor-client privilege in that the records were prepared for Crown counsel for use in litigation. Under the Municipal Freedom of Information and Protection of Privacy Act [MFIPPA], the term "Crown counsel" is not used. The solicitor-client exemption for municipal institutions, such as local police services covered by MFIPPA, uses the term "counsel employed by or retained by an institution." As a result, the exemption under MFIPPA does not apply to the Crown brief because the Crown attorney, who is an employee of the provincial government, is not "employed or retained" by local police services. [Editorial Note: In these instances, police services may wish to consider transferring the request to the Crown attorney's office for their consideration.] (Order #M-52)


  • The common-law privilege does not apply to a record created by a non-lawyer employee of an institution that contains a review of legal advice the employee previously obtained from her own lawyer, who was not an employee of the institution. In this context, the common- law privilege only attaches to the lawyer's advice, not to subsequent notations by a non- lawyer as to what that advice was. As well, the privilege may be waived by the client where legal advice is sent to a third party. (Order #P-365)


  • Communications between solicitor and client include those between a solicitor and an Appeal Assistant of the Rent Review Board, who acts as agent of the Board member in the review and analysis of a Rent Review Hearings Board file. Where the draft decision of the board was submitted to the board's legal advisor for advice, it is exempt. (Order #P-150)


  • Where a third party reports that certain legal advice was given by a solicitor to a particular client, the privilege would not attach. However, where the record is the device used to communicate the solicitor's advice to the client, it is covered by the exemption. (Order #P-170)

 

  • The disclosure of a "final" legal opinion that is subject to solicitor-client privilege does not constitute a waiver in respect of the earlier "draft" legal opinion. The two opinions are separate responses, produced at different times. The second opinion was provided by the solicitor after consultation with his client in respect of the "draft." The earlier "draft" legal opinion is still subject to this exemption. The solicitor-client privilege applies even though the legal opinion was obtained in response to concerns raised by members of the public. (Order #M-2, M-11, M-19, M-59, M-61, M-69, and see also Orders #P-163, P-170 and P-227 where draft records were held to be covered by the solicitor-client privilege.)


  • Memoranda prepared by one employee for review by another, where neither is a lawyer, is exempt if it summarizes the advice given by legal counsel for the institution. Here, the employee who obtained the advice from the lawyer is acting as an agent of the person seeking the advice so that the solicitor-client relationship existed. (Orders #P-402, P-424, M-158)


  • During a judicial review application, counsel for the third party applicant sent affidavits to the institution's counsel to be sworn by employees within the institution. The affidavits were not privileged because there was no solicitor-client relationship between the institution and the counsel for the third party applicant. (Order #P-475)


  • Confidential legal advice provided by counsel for the Ministry of the Attorney General to her client which was an Inter-ministerial committee was exempt. (Order #P-879)\


  • A negotiator appointed by an inter-provincial steering committee of Deputy Ministers of Health to conduct negotiations re: compensation of HIV infected individuals was found to be acting as solicitor to the Steering Committee even though the negotiator's terms of reference did not specify that the negotiator need be a lawyer or provide legal advice. The Commission found that the negotiator in fact functioned as a lawyer and provided legal advice to the Steering Committee. (Order #P-1137)


  • Where various provinces and the Canadian Blood Agency formed an inter-provincial committee to negotiate the compensation of HIV infected individuals, all of the parties, including their respective legal counsel, were engaged in a common enterprise. In such situations, counsel must be free to exchange legal advice without waiving solicitor-client privilege. All of the individual parties represented on the committee may be considered to be the client group of all the counsel involved. (Order #P-1137)


  • The mere reference to the fact that a legal opinion was obtained, which makes no reference to the content or substance of the opinion, does not represent a confidential communication between a solicitor and a client for the purpose of seeking, formulating or providing legal advice. (Order #PO-1742-i)


Solicitor-Client Communications



  • Where records are marked up or annotated by Crown counsel for the purpose of giving advice, the exemption applies. (Orders #P-170, P-150, P-381, P-403)


  • A note saying that a legal memo is attached or a title page to a legal opinion, which contains a distribution list, is not subject to this exemption. (Order #P-200)


  • Where an investigation into wrongdoing is conducted by Crown counsel, the fact-finding exercise need not be divorced from the advice given concerning the legal implications of those facts. All of the records are exempt. (Order #P-170 )


  • The fact that a lawyer reviewed a record that he or she did not create and that is, in itself, unrelated to the provision of legal advice, does not bring that record within this exemption. (Order #P-227)


  • Where a letter from one legal counsel to another outlines administrative arrangements, put in place by the lawyer to deal with the transfer of responsibility of a file to a different lawyer, it is not related to the seeking, formulating or giving of legal advice. It is therefore not exempt. (Order #P-398)


  • Records that incorporate legal advice given by an institution's counsel are exempt. In this case, the records contain written notations of the verbal legal advice that had been provided to institution employees from their counsel during a series of meetings. (Order #P-477)


  • This exemption does not apply to a confidential written communication between a solicitor and client that contains a factual response regarding the status of a pending court application. (Order #M-157)


  • While portions of a record prepared by counsel and retained by an institution were factual in nature, these were intermingled with material prepared for use either in giving legal advice or for use in litigation. As a result, the exemption applied. (Order #M-162)


  • The privilege did not apply to an invoice submitted to the institution's solicitor who, in turn, forwarded it to the institution for approval and payment. The Commission ruled that the institution's solicitor was merely a conduit for the passing of the documents to the client. The communication originated with the third party and not a legal advisor of the institution. As well, the communication was not "legal advice" in that it was prepared by forensic and investigative accountants and no recommended course of action based on legal considerations or legal opinion was expressed. (Order #M-258)


  • The mere fact that a particular type of issue has arisen which the Attorney General will ultimately have to decide on does not automatically make any communication from the Attorney General's legal advisors regarding this issue qualify as legal advice. (Order #P-984)


  • A confidential letter containing a legal opinion prepared for a municipality by a solicitor regarding renovations to a particular property is exempt because it was directly related to the formulating and giving of legal advice. (Order #M-542)


  • The Commission has ruled that common law privilege applies to a continuum of communications between a lawyer and client. The fact that the communication does not set out fact and issues and legal principles does not remove it from the scope of solicitor-client privilege, as long as the communication was made for the dominant purpose of obtaining legal advice. (Order PO-1663)


Custody or Control



  • Records residing with Ontario government lawyers working as legal counsel to institutions other than the Ministry of the Attorney General are clearly in the custody or control of those institutions and not the Ministry of the Attorney General. The fact that all Ontario government lawyers are employed by the Ministry of the Attorney General does not mean that the Ministry of the Attorney General has custody or control of all the records that they produce. (Order #P-134)


  • Records in the custody of lawyers who have been privately retained by an institution are still in the "control" of the institution. As well, s.6(6) of the Solicitors Act confirms that the records are fundamentally those of the client and that they shall be returned to the client on payment of the fee. In essence, the lawyer holds records as an agent of the client. The Commission found that the principles enunciated in Aggio v. Rosenberg et al. (1981) C.P.C. 7, applied and not the policies of the solicitor's firm. In Aggio, the Court held that records prepared by the solicitor for his or her own benefit or protection, and not chargeable to the client, belong to the solicitor. Similarly, records sent by the client to the solicitor for the solicitor, such as letters, belong to the solicitor. Other records prepared for the benefit of the client belong to the client. In an appeal in this regard, the Commission may give notice to the Law Society of Upper Canada as a potential affected party. (Orders #M-315, M-371, M-500)


  • Records in the custody of a lawyer hired as an investigator to provide an impartial and independent inquiry into a complaint were prepared for his own benefit and do not fall within the categories set out which indicate custody or control. In this case, the terms of the agreement between Hydro and the lawyer setting out the conditions of his employment and the maintenance of the records led the Commission to conclude there is no control over the investigation records by Hydro. (Order #M-506)


The Exercise of Discretion



  • In this case, the Commission ordered the institution to reconsider the exercise of discretion where the rationale for using the exemption was that whenever the solicitor-client privilege applies, the exemption is applied. The Commission also noted that the discretion must be exercised by the head only and the head may not act under the dictation of the solicitor. In respect of waiver of the privilege, the institution, as client, is the one that may choose to claim the privilege or not. As well, the head is required to consider the merits of the requester's particular case. (Orders #M-285, M-286)

Statutory interpretation



  • Reliance on legislative history as a guide to legislative intent is consistent with the modern rule of statutory interpretation from 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool) (1996), 140 D.L.R. (4th) 577 at 640 (S.C.C.), where Madam Justice L'Heureux-Dubé adopted the following passage from Professor R. Sullivan in Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at p. 131: "There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just." (Order #PO-1879)

Stare decisis



  • The IPC may deviate from it past decisions, particularly where it is required to interpret or apply an external body of law such as solicitor client privilege which is itself subject to change over time. (Order #PO-1879)
 
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