ORDER MO-1653

 

Appeal MA-020129-2

 

The Regional Municipality of Niagara

NATURE OF THE APPEAL:

 

This is an appeal from a decision of the Regional Municipality of Niagara (the Region), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act).  The requester (now the appellant) sought access to the notes taken by the Region’s Director of Legal Services (the solicitor) at a specified meeting.

 

The Region located one page of notes, and denied access to them citing the discretionary exemption in section 12 of the Act (solicitor-client privilege).  The appellant appealed from this decision.

 

I sent a Notice of Inquiry to the Region, initially, inviting it to make representations on the facts and issues in dispute.  Those representations were shared with the appellant, who has also provided representations.  The Region subsequently submitted reply representations in answer to those of the appellant.

 

CONCLUSION:

 

The record is not exempt under the section 12 solicitor-client privilege exemption.

 

RECORD:

 

The record consists of a Note to File, dated June 1, 1998.  It contains the solicitor’s handwritten notes of a meeting involving the solicitor and four other individuals.

 

DISCUSSION:

 

The sole issue raised by this appeal is the application of the section 12 solicitor-client privilege exemption to the record.

 

SOLICITOR-CLIENT PRIVILEGE

 

Introduction

 

Section 12 of the Act reads:

 

A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.

 

Section 12 encompasses two heads of privilege, as derived from the common law:  (i) solicitor-client communication privilege; and (ii) litigation privilege.  In order for section 12 to apply, the institution must establish that one or the other, or both, of these heads of privilege apply to the records at issue.  The Region does not claim that the litigation privilege applies to the record.

 

Solicitor-client communication privilege

 

Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining professional legal advice.  The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551]. 

 

The Supreme Court of Canada has described this privilege as follows:

 

... all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attaching to confidentiality.  This confidentiality attaches to all communications made within the framework of the solicitor-client relationship ... [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 at 618, cited in Order P-1409]

 

The privilege has been found to apply to “a continuum of communications” between a solicitor and client:

 

. . . the test is whether the communication or document was made confidentially for the purposes of legal advice.  Those purposes have to be construed broadly.  Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice.  But it does not follow that all other communications between them lack privilege.  In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages.  There will be a continuum of communications and meetings between the solicitor and client ...  Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.  A letter from the client containing information may end with such words as “please advise me what I should do.”  But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice.  Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P‑1409].

 

Solicitor-client communication privilege has been found to apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice [Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, cited in Order M-729].

 

Advice given by lawyers on matters outside the solicitor-client relationship, however, is not protected.  In R. v. Campbell [1999] 1 S.C.R. 565, the Supreme Court of Canada discussed the application of the solicitor-client privilege in circumstances where a lawyer may have multiple responsibilities:

 

It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege.   While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments.  Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how.  Advice given by lawyers on matters outside the solicitor-client relationship is not protected.  A comparable range of functions is exhibited by salaried corporate counsel employed by business organizations. Solicitor-client communications by corporate employees with in-house counsel enjoy the privilege, although (as in government) the corporate context creates special problems: see, for example, the in-house inquiry into "questionable payments" to foreign governments at issue in Upjohn Co. v. United States, 449 U.S. 383 (1981), per Rehnquist J. (as he then was), at pp. 394-95.  In private practice some lawyers are valued as much (or  more) for raw business sense as for legal acumen.  No solicitor-client privilege attaches to advice on purely business matters even where it is provided by a lawyer.  As Lord Hanworth, M.R., stated in Minter v. Priest, [1929] 1 K.B. 655 (C.A.), at pp. 668-69:

 

[I]t  is not sufficient for the witness to say, “I went to a solicitor’s office.”  … Questions are admissible to reveal and determine for what purpose and under what circumstances the intending client went to the office.

 

Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered. 

 

Representations

 

In response to the Notice of Inquiry, the Region states that the whole purpose of the meeting on June 1, 1998 was for agents and employees of the Region to directly communicate with the solicitor and obtain his professional legal advice.

 

In response, the appellant states that the meeting of June 1, 1998 was an internal meeting for the purpose of reviewing the tenders received in response to a public tender.  The appellant asserts that the meeting was the first formally organized meeting to review tenders by the Region’s tender review team, which includes the solicitor.  He submits that “nothing that was discussed at this meeting was used in any legal manner, legal letter, reports, opinions or advice”.

 

Further, the appellant submits that according to evidence given under oath by representatives of the Region, the solicitor was the only person present at the meeting who kept notes, the purpose of the meeting was to generally discuss tenders received on May 12, 1998 for a specified project, none of the witnesses who attended the meeting and testified for the Region said that the meeting was to strictly obtain legal advice or opinions and that the “gist was that participation by [the solicitor] was normal in any tender review meeting such as this one and that this meeting was a normal tender review meeting which occurs on most tenders and nothing unusual.”

 

Among other things, the appellant also asserts that the Region’s conduct following the meeting indicates that the meeting was not for the purposes of any legal matters, but for the normal purposes of a tender review.  The only actions arising from the meeting were actions by the engineers and the non-lawyer attendees.  He states that the meeting was a general meeting to review a tender and was not held merely to obtain legal advice.  If any legal advice arose, it was not the predominant purpose of the meeting.

 

I provided the Region with the appellant’s representations, inviting the Region to respond to them.  In my letter to the Region, I also referred it to the passage from R. v. Campbell, above.  In response, the Region sent a letter in which it set out the views of the solicitor, as follows:

 

The whole purpose of the meeting on June 1, 1998 was for agents and employees of the Region (my client) to directly communicate with me and obtain my professional legal advice as solicitor for the Region.

 

I don’t think it could be any clearer that my notes of that meeting fall squarely within the scope of the solicitor-client communication privilege…

 

I made the note to file as part of a standard risk management procedure of documenting all dealings with my client, whether litigation might follow or not.”

 

Analysis

 

 

ORDER:

 

1.           I order the Region to disclose the record to the appellant by June 25, 2003.

 

2.           In order to verify compliance with my order, I reserve the right to require the Region to provide me with a copy of the record disclosed to the appellant.

 

 

 

 

 

Original signed by:                                                                               May 28, 2003                        

Sherry Liang