ONTARIO COURT (GENERAL DIVISION)
(DIVISIONAL COURT)

IN THE MATTER OF the Freedom of Information
and Protection of Privacy Act,
R.S.O. 1990, c. F.31

BETWEEN:

THE ATTORNEY GENERAL OF ONTARIO

Applicant

- and -

HOLLY BIG CANOE, Inquiry Officer
JOHN DOE and the LAW SOCIETY OF UPPER CANADA

Respondents

Endorsement

Having heard from the parties, the court is satisfied that there is a serious question to be tried; that reasonable harm to applicant is, in these circumstances, likely if a stay is not granted and that the balance of convenience lies with the applicant for essentially these same reasons, the stay therefore is continued to the hearing of the application for judicial review. The hearing of this matter, having regard to the circumstances, should be expedited and the parties have undertaken to cooperate in this respect. Costs fixed at $300 and to be awarded by the panel hearing the merits of the application.

Dated: March 26, 1997

ONTARIO COURT (GENERAL DIVISION)
DIVISIONAL COURT

Matlow J.

THE ATTORNEY GENERAL OF ONTARIO

and

HOLLY BIG CANOE, Inquiry Officer
JOHN DOE and the LAW SOCIETY OF UPPER CANADA

ENDORSEMENT

Order to go as asked. The balancing of competing interests in Gravenhurst (Town) v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 531 (Div. Ct.) should be applied in my view to this case. If John Doe retains counsel to represent him solely on the judicial review application, a further application may be brought for an order permitting disclosure of the Private Record to him upon his filing the usual undertaking.

ONTARIO COURT (GENERAL DIVISION)
DIVISIONAL COURT

0'Leary, Carnwath and West JJ.

THE ATTORNEY GENERAL OF ONTARIO

and

HOLLY BIG CANOE, Inquiry Officer et al.

ENDORSEMENT.

In our view any obligation that counsel for the Crown had to the Law Society did not obligate him to report anything that would entail a breach of solicitor-client privilege. Accordingly by reporting or sending to the Law Society what was privileged, the Crown voluntarily waived privilege and that information is no longer shielded from disclosure under the Freedom of Information and Protection of Privacy Act.

Section 42(g) of the Act which permitted the Crown to disclose to the Law Society information relating to John Doe does not in our view require the disclosure of privileged information or protect the disclosure of such information from waiver of privilege.

Neither any obligation to the Law Society nor section 42(g) of the Act, then, can be used to prevent disclosure of information sought by John Doe. The application is therefore dismissed.

Since we have not had to call on the respondents we leave to another day the question of the extent to which Inquiry Officers should be permitted to argue the issues raised in such an application.

No order as to costs. The order is stayed for 15 days pending a decision on appealing by the applicant.