Manual
Solicitor-Client Privilege s.19
FIPPA / s.12 MFIPPA
This section contains the following topics:
Summary
Application to Legal
Advice
Application to
Litigation Records
Waiver
Summary
This discretionary exemption covers records subject to the common-law
solicitor-client privilege (Branch 1) or those records prepared by or for
Crown counsel or counsel employed or retained by an institution, for use
in giving legal advice or in contemplation of or for use in litigation
(Branch 2). Branch 2 can apply regardless of whether the common-law
privilege applies.
Under FIPPA, "Crown counsel" includes any person acting in
the capacity of legal advisor to an institution.
"Legal advice" includes a legal opinion about a legal issue
and a recommended course of action based on legal considerations. It does
not include information which was provided about a matter having legal
implications where no legal opinion was expressed or where no course of
action based on legal considerations was recommended. The fact that a
lawyer reviewed a record does not of itself mean that the record falls
within the exemption.
The opinion of an institution's legal advisors should always be sought
before this exemption is used. Institutions must take care to ensure that
that legal opinions are not released to another party as the
solicitor-client privilege might be jeopardized.
The public interest override in s.23
Freedom of Information and Protection of Privacy Act (FIPPA) / s.16
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)
does not apply.
Application to Legal Advice (Branch 1)
The common law privilege (Branch 1) applies to: 1) all communications,
verbal or written, of a confidential character, between a client, or his
or her agent, and a legal advisor directly related to seeking, formulating
or giving of legal advice or legal assistance (including the legal
advisor's working papers directly related thereto); and 2) papers and
materials created or obtained especially for a lawyer's brief for
litigation, whether existing or contemplated.
For solicitor-client privilege to apply, four criteria must be met:
- there must be a written or oral communication;
- the communication must be of a confidential nature;
- the communication must be between an institution and a legal
advisor; and
- the communication must be directly related to seeking, formulating
or giving legal advice.
Application to Litigation Records (Branch 2)
Branch 2 of the section provides an exemption for all materials
prepared 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. This means that any
communication, even of a non-confidential nature, between a lawyer and
client or between a lawyer and third parties which is conducted for the
purpose of litigation is privileged.
For a document to be "prepared... in contemplation of
litigation", two criteria must be met:
1) contemplated litigation must be the dominant purpose for preparing
the record, and
2) there must be a reasonable prospect of such litigation at the time
the document was prepared; the litigation must be more than just a vague
or theoretical possibility.
Waiver
Only the client is entitled to waive the solicitor-client privilege and
thereby authorizing disclosure of the record. For such a waiver to be
effective, there must be specific evidence of the client's waiver of the
privilege. The client's waiver will not be implied from the fact that
individuals or institutions other than the solicitor or client have
possession of the record. However, the IPC has found instances where there
was an implied waiver of privilege and the record was ordered disclosed.
In one instance, a client disclosed an opinion to a specific party,
intentionally and without any restrictions on its use, and the IPC found
that this release constituted a waiver of the solicitor-client privilege.
In another instance, an institution was found to have implicitly waived
solicitor-client privilege with respect to a letter that was located in a
land development file. The file was available for review by the public and
had been seen by the requester in that way. Two additional facts were
important to the outcome of the case: the institution did not remove the
record from the file once it was aware of the problem and it did not make
any representations on the issue of waiver during the appeal process.
Institutions must take care to ensure that legal opinions are not
released to a specific party as the solicitor-client privilege may be
jeopardized. If an institution wishes to release privileged information to
a specific party, it should place restrictions on its use if it wishes to
retain the solicitor-client privilege.
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