SAUNDERS J.    (Orally)

This is an application for Judicial review to quash parts of an order of an inquiry officer made under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (the "Act").

The background is as follows. An agency of the Ontario government was concerned with the management of its foreign currency transactions, particularly in the area of options. Other government agencies shared that concern. As part of addressing the matter, the agency engaged the services of a firm of chartered accountants. On June 3, 1992, the accounting firm wrote an engagement letter to the agency setting out certain work that it proposed to do. On the following July 23, 1992, the director of legal services of the agency wrote to the same firm of chartered accountants and said as follows:

The letter was marked "Privileged & Confidential".

On September 3, 1992, a formal agreement was entered into between the agency and the firm of chartered accountants. The agreement recites the proposal of June 3, 1992 and states that it has been necessary to expand the parameters of the review. It goes on to recite that the parties have agreed to cancel the proposal contained in the June 3rd letter and to enter into an expanded agreement which would reflect both the June 3rd proposal and the requested additional activities. The agreement provided for the cancellation and the agreement as to the nature of work to be done.

On February 5, 1993, the firm of chartered accountants presented its preliminary report to the agency. A request was made for the disclosure of that report and certain other documents. The head claimed an exemption under s. 19 of the Act. Section 19, provides as follows:

In dealing with the claim for exemption, the inquiry officer said:

In allowing the s. 19 exemption for certain records, the inquiry officer said, "Records (setting out their numbers) however, represent communications of a confidential nature between a client and a legal advisor which are directly related to seeking, formulating or giving legal advice. Accordingly, I find that these records are exempt from disclosure under Branch 2 of the s. 19 exemption." It is to be observed that his reasons for granting the exemption are expressed in terms narrower than the statute. Under Branch 2, a document is entitled to exemption if it was prepared for use in giving legal advice.

A number of issues were raised before us, but we only need to deal with one of them. A head may refuse to disclose a record that was prepared for Crown counsel for use in giving legal advice. The letter of July 23rd from the director of legal services was a request for an investigation to assist in giving legal advice. The inquiry officer found that the letter was entitled to the s. 19 exemption. It is clear to us, on the evidence, that document 45 was a response to that request. Not only is there a statement that the document is provided for the purpose of assisting counsel to provide legal advice, but also a review of its contents reveals that it is, in substance, a report on the investigation requested in the July 23rd letter. It is true that it contains information and material that would have been pertinent to the work proposed on June 3rd, but that information and material was a necessary foundation to the investigation of the activities of the individual employee. It is abundantly clear that the dominant purpose in the preparation of the document was for use in the giving of legal advice. It was, accordingly, patently unreasonable for the inquiry officer to have determined otherwise. Furthermore, having decided that the letter requesting the investigation was exempt, it was unreasonable not to also have given exemption to the report of the investigation.

Document 44 is the transmittal letter submitting the report, and document 31 is an internal memo of the director of legal services as to the conduct of the investigation. In our view, consistency requires that these documents should also be exempt and that it is unreasonable not to do so.

For these reasons, we have endorsed the record as follows:

The Attorney General does not ask for costs and there will be no order for costs.

SAUNDERS J.
ROSENBERG J.
FELDMAN J.

ONTARIO COURT (GENERAL DIVISION)
DIVISIONAL COURT

Q'Leary J.

ATTORNEY GENERAL FOR ONTARIO

and

DONALD HALE et at.

ENDORSEMENT

The application is allowed, with one exception. No order as to costs.

I am not convinced that Mr. Jacobsen cannot adequately advise his client without the in house solicitor and his advising company officer also seeing the record to be sealed.

It may well be that the practice of this sophisticated client is to decide for itself, after examining all information whether to go along with the advice of counsel. That does not mean the client cannot be properly advised without its having the information.

The extent to which a breach of solicitor client privilege is to be allowed by the Court cannot depend on the practice of a particular client that seeks to see the privileged information.

It cannot be that one person can be allowed to see the information because he is cautious about accepting the advice of counsel, while another client in another case will be barred from the information because he customarily relies on the advice of counsel.

The issue is - to what extent is it necessary to breach solicitor client privilege and permit others to see the record. I conclude that it is not necessary for justice to be done, for the judicial review application to be fairly argued, that in house counsel and his advising officer also see the record.

Mr. Jacobsen submitted that it was necessary that these others see the record so they could decide whether there was anything in that record to make it worth the client's while to proceed with the judicial review. In my view it would be improper to allow them to see the record for that reason. That would accomplish at least part of the purpose that lead ultimately to the judicial review application. The issue is not whether there is purpose in pursuing the judicial review bu the extent to which solicitor client privilege must be breached to permit justice to be done.

Only Mr. Jacobsen and necessary legal and administrative staff will be allowed to see the record.

The sealing order is made as requested subject to that exception.

No order as to costs.